Prov Rem Reviewer-final (1)

PROVISIONAL REMEDIES 2010 San Beda Memory Aid, Atty. Geraldine Quimosing-Tiu Riano Reviewer, Syllabus

PROVISIONAL REMEDIES Provisional Remedies are temporary, auxiliary and ancillary remedies available to a litigant for the protection and preservation of his rights while the main action is pending. (Riano, Civil Procedure, 2009 Ed.)  Writs and processes which are not main actions and they presuppose the existence of a principal action.  The word Provisional Remedy is suggestive. It is something temporary.  Provisional Remedies are remedies which are temporary and is defined by the Supreme Court as remedies which parties may resort for the preservation or protection of their rights and interests and for no other purpose, during the pendency of the principal action. So these are the remedies resorted to just to preserve the rights of the parties while the case is pending. The FOLLOWING are the provisional remedies provided for in the Rules of Court: 1. Preliminary Attachment (Rule 57) 2. Preliminary Injunction (Rule 58) 3. Receivership (Rule 59) 4. Replevin or delivery of private property (Rule 60) 5. Support Pendente Lite (Rule 61) These provisional remedies are also available in criminal cases (Rule 127), and in some special civil actions and special proceedings. Purpose of Provisional Remedies: Provisional remedies are resorted to by litigants for any of the following reasons: 1. To preserve or protect their rights or interest while the main action is pending; 2. To secure the judgment; 3. To preserve the status quo; or 4. To preserve the subject matter of the action. OTHER PROVISIONAL REMEDIES A. Issued by a family court 1. Temporary Custody of Minor Children 2. Order allowing Visitation Rights of Parents B. Interim Reliefs in a Petition for a Writ of Amparo 1. Temporary Protection Order 2. Inspection Order 3. Production Order 4. Witness Protection Order Note: PD 1818 prohibits the issuance of injunctive writs not only against government entities but also against any person or entity involved in the execution, implementation, and operation of government infrastructure projects. 

Inferior courts can grant all appropriate provisional remedies, provided the main case is within its jurisdiction (Sec. 33 [1] BP 129) RULE 57 PRELIMINARY ATTACHMENT

Gene Geocaniga, Cherry Lynn Trinidad TAU MU Page 1 of 42

Sources: Herrera Vol. III 2006,

Preliminary attachment is a provisional remedy issued upon order of the court where an action is pending to be levied upon the property of the defendant so that it may be held as security for the satisfaction of whatever judgment may be rendered in the case (Davao Light and Power, Inc. vs. CA, 204 SCRA 343). Section 1. Grounds upon which attachment may issue. – At the commencement of the action or at any time before entry of judgment, a plaintif or any proper party may have the property of the adverse party attached as security for the satisfaction of any judgment that may be recovered in the following cases: (a) In an action for the recovery of a specified amount of money or damages, other than moral and exemplary, on a cause of action arising from law, contract, quasi-contract, delict or quasidelict against a party who is about to depart from the Philippines which intent to defraud his creditors; (b) In an action for money or property embezzled or fraudulently misapplied or converted to his own use by a public officer, or an officer of a corporation, or an attorney, factor, broker agent, or clerk, in the course of his employment as such, or by other person in a fiduciary capacity, or for a willful violation of duty; (c) In an action to recover the possession of property unjustly or fraudulently taken, detained or converted, when the property, or any part thereof, has been concealed, removed, or disposed of to prevent its being found or taken by the applicant or an authorized person; (d) In an action against a party who has been guilty of a fraud in contracting the debt or incurring the obligation upon which the action is brought, or in the performance thereof; (e) In an action against a party who has removed or disposed of his property, or is about to do so, with intent to defraud his creditors; or (f) In an action against a party who does not reside and is not found in the Philippines, or on whom summons may be served by publication. (1a) The proper party may have the property of the adverse party attached at the commencement of the action or at any time before entry of judgment. When issued: (REPoGReS) 1. In actions for Recovery of a specified sum of money or damages, except moral and exemplary, on a cause of action arising from law, contract, quasi-contract, delict or quasidelict against a party about to depart from the Philippines with intent to defraud his creditors;

PROVISIONAL REMEDIES 2010 San Beda Memory Aid, Atty. Geraldine Quimosing-Tiu Riano Reviewer, Syllabus

Sources: Herrera Vol. III 2006,

Cases: K.O. GLASS CONST. CO. vs. VALENZUELA, 116 SCRA 563 - mere allegation that the defendant is a foreigner is insufficient. There being no showing that the defendants are about to depart from the Philippines with intent to defraud their creditor, or that they are non-resident aliens, the attachment of their properties is not justified.

of to prevent its being found by the applicant or any authorized person; Cases: SANTOS vs. BERNABE, 54 Phil. 19 – as distinguished from replevin – the personal property in this case belongs to the defendant and the plaintiff seeks to attach it to secure the satisfaction of any judgment that he may recover from the defendant.

GENERAL vs. DE VENECIA, 78 Phil. 780 - On the question of validity of the attachment, "the GENERAL RULE is that, unless the statute expressly so provides, the remedy by attachment is not available in respect to a demand which is not due and payable, and if an attachment is issued upon such a demand without statutory authority it is void." It must be observed that under our rules governing the matter the person seeking a preliminary attachment must show that "a sufficient cause of action exists" and that the amount due him is as much as the sum for which the order of attachment is granted" (sec. 3, Rule 59). Inasmuch as the commitment of Luis F. General has not as yet become demandable, there existed no cause of action against him, and the complaint should have been dismissed and the attachment lifted.

CALO vs. ROLDAN, 76 Phil. 445 - ATTACHMENT may be issued only in the cases or actions specifically stated in section 1, Rule 59, in order that the defendant may not dispose of his property attached, and thus secure the satisfaction of any judgment that may be recovered by plaintiff from defendant. For that reason a property subject of litigation between the parties, or claimed by plaintiff as his, cannot be attached upon motion of the same plaintiff. The provisional remedy proper to plaintiffs' action of injunction is a preliminary prohibitory injunction, if plaintiffs' theory, as set forth in the complaint, that he is the owner and in actual possession of the premises is correct.

INSULAR SAVINGS BANK vs. CA, 460 SCRA 122 – writ of preliminary attachment cannot be issued for moral and exemplary and other unliquidated or contingent claims. 2. In actions for money or property Embezzled or fraudulently misapplied or converted to his own use by a public officer, or an officer of a corp., or an attorney, factor, broker, agent or clerk, in the course of his employment as such, or by any person in a fiduciary capacity or for a wilful violation of duty; Cases: TAN vs. ZANDUETA, 61 Phil. 526 – a writ of preliminary attachment is proper in an action against a person to recover the share of the coowner. WALTER E. OLSON AND CO. vs. OLSEN, 48 Phil. 238 - The conduct of the defendant-appellant (a corporate officer) in connection with the funds of the corporation he represented was more than an irregularity; and while it is not sufficiently serious to constitute a criminal fraud, it is undoubtedly a fraud of a civil character, because it is an abuse of confidence to the damage of the corporation and its stockholders, and constitutes one of the grounds enumerated in section 424, in connection with section 412, of the Code of Civil Procedure for the issuance of a preliminary attachment (now Rule 57 of the Rules of Court). 3. In actions to recover the Possession of property unjustly or fraudulently taken, detained or converted when the property or part thereof, has been concealed or disposed Gene Geocaniga, Cherry Lynn Trinidad TAU MU Page 2 of 42

4. In actions against a person Guilty of fraud in contracting the debt (dolo causante) or incurring or performing an obligation upon which the action is based (dolo incidente); Case: STATE INVESTMENT HOUSE, INC. vs. CA, 163 SCRA 247 - It can hardly be doubted that those representations in petitioner's printed deeds of sale were false. But false though they were, the petitioners cannot claim to have been deceived or deluded by them because it knew, or should have known , that the issuer of the checks, Pedro O. Valdez, was not a "buyer" of the "merchandise and personalities made in the ordinary course of business" by P.O. Valdez, Inc. of which he was the president. Since the petitioner failed to prove during the hearing of private respondents' motion to lift the preliminary writ of attachment, that P.O. Valdez, Inc. received from it independent consideration for the "sale" of Pedro Valdez' checks to it, apart from the loans previously extended to the corporations, We are constrained to affirm the finding of the court of Appeals that Valdez's checks are "mere evidence of the outstanding obligation of P.O. Valdez, Inc. to the petitioner." The petition was not defrauded by their issuance for the loans had been contracted and released to P.O. Valdez, Inc. long before the checks were issued. 5. In actions against a party who has Removed or disposed of his property, or is about to do so, with intent to defraud his creditors; Cases: ABOITIZ vs. COTABATO BUS CO., 105 SCRA 88 insolvency was not a ground for preliminary attachment. You cannot find it in the Rules. Even if he is on the verge of insolvency but he is not running away from his creditors, you cannot attach.

PROVISIONAL REMEDIES 2010 San Beda Memory Aid, Atty. Geraldine Quimosing-Tiu Riano Reviewer, Syllabus

PEOPLE’S BANK & TRUST CO. vs. SYVEL’S INC., 164 SCRA 247 - intent to defraud may be and usually is inferred from the facts and circumstances of the case; it can rarely be proved by direct evidence. It may be gleaned also from the statements and conduct of the debtor, and in this connection, the principle may be applied that every person is presumed to intend the natural consequences of his acts ADLAWAN vs. TORRES, 233 SCRA 645 (1994) - It was held that the execution of a mortgage in favor of another creditor is not conceived by the Rules as one of the means of fraudulently disposing of one's property. By mortgaging a piece of property, a debtor merely subjects it to a lien but ownership thereof is not parted with. Furthermore, the inability to pay one's creditors is not necessarily synonymous with fraudulent intent not to honor an obligation. Proof of defraud is mandated by paragraphs (d) and (e) of Section 1, Rule 57 of the Revised Rules of Court on the grounds upon which attachment may issue. Thus, the factual basis on defendant's intent to defraud must be clearly alleged in the affidavit in support of the prayer for the writ of attachment if not so specifically alleged in the verified complaint. 6. In actions against non-residents not found in the Philippines, or on whom Summons is served by publication. Cases: MIAILHE vs. DE LENCQUESAING, 142 SCRA 694 – Non-resident defendant or on whom summons may be served by publication – This is applicable only where the plaintiff’s claim is liquidated but not to unliquidated damages. CLAUDE NEON LIGHTS vs. PHILIPPINE ADVERTISING CORP., 57 Phil 607 – The rule does not include foreign corporations duly licensed to do business in the Philippines but refers only to natural persons. STATE INVESTMENT HOUSE, INC. vs. CITIBANK, N.A., 203 SCRA 9 - a foreign corporation licitly doing business in the Philippines, which is a defendant in a civil suit, may not be considered a non-resident within the scope of the legal provision authorizing attachment against a defendant not residing in the Philippine Islands;" in other words, a preliminary attachment may not be applied for and granted solely on the asserted fact that the defendant is a foreign corporation authorized to do business in the Philippines — and is consequently and necessarily, "a party who resides out of the Philippines." NORTHWEST AIRLINE vs. CA, 241 SCRA 192 - This Court agrees that if the defendant in a foreign court is a resident in the court of that foreign court such court could acquire jurisdiction over the person of the defendant but it must be served upon the defendant in the territorial jurisdiction of the foreign court. Such is not the case here because the defendant was served with summons in the Philippines and not in Japan. Gene Geocaniga, Cherry Lynn Trinidad TAU MU Page 3 of 42

Sources: Herrera Vol. III 2006,

Jurisprudence so holds that the foreign or domestic character of a corporation is to be determined by the place of its origin, where its charter was granted and not by the location of its charter was granted and not by the location of its business activities. A corporation is a "resident" and an inhabitant of the state in which it is incorporated and no other. Defendant-appellee is a Philippine Corporation duly organized under the Philippine laws. Clearly, its residence is the Philippines, the place of its incorporation, and not Japan. While defendantappellee maintains branches in Japan, this will not make it a resident of Japan. A corporation does not become a resident of another by engaging in business there even though licensed by that state and in terms given all the rights and privileges of a domestic corporation. On this premise, defendant-appellee is a nonresident corporation. As such, court processes must be served upon it at a place within the state in which the action is brought and not elsewhere MABANAG vs. GALLEMORE, 81 Phil. 254 - As a general rule, when the defendant is not residing and is not found in the Philippines, the Philippine courts cannot try any case against him because of the impossibility of acquiring jurisdiction over his person, unless he voluntarily appears in court. But, when the action affects the personal status of the plaintiff residing in the Philippines, or is intended to seize or dispose of any property, real or personal, of the defendant, located in the Philippines, it may be validly tried by the Philippine courts, for then, they have jurisdiction over the res, i.e., the personal status of the plaintiff or the property of the defendant, and their jurisdiction over the person of the nonresident defendant is not essential. The Court has acquired jurisdiction of the case at bar by virtue of the attachment of the defendant's credit. PCIB vs. ALEJANDRO, September 21, 2007 – In actions in personam against residents temporarily out of the Philippines, the court need not always attach the defendant’s property in order to have authority to try the case. Where the plaintiff seeks to attach the defendant’s property and to resort to the concomitant service of summons by publication, the same must be with prior leave, precisely because, if the sole purpose of the attachment is for the court to acquire jurisdiction, the latter must determine whether from the allegations in the complaint, substituted service (to persons of suitable discretion at the defendant’s residence or to a competent person in charge of his office or regular place of business) will suffice, or whether there is a need to attach the property of the defendant and resort to service of summons by publication in order for the court to acquire jurisdiction over the case and to comply with the requirements of due process. Note: The foregoing enumeration is EXCLUSIVE. Except for No. 6, all the grounds alleged the

PROVISIONAL REMEDIES 2010 San Beda Memory Aid, Atty. Geraldine Quimosing-Tiu Riano Reviewer, Syllabus

commission of fraud by the person against whom it is issued. Purposes: 1. To seize the property of the debtor in advance of final judgment and to hold it for purposes of satisfying the said judgment (Insular Bank of Asia and America vs. CA, 190 SCRA 629); and 2. To enable the court to acquire jurisdiction over the action by the actual or constructive seizure of the property in those instances where personal service of summons on the creditor cannot be effected. Classes of Attachment Preliminary Final Attachment Attachment (Rule 39) (Rule 57) It is an auxiliary It is a means for the remedy to give security execution of a final for a judgment still to judgment. be rendered. There is no sale It should always be because a decision has accompanied by a sale not yet been rendered. at public auction. Resorted to at the Available after the commencement of the judgment in the main action or at any time action had become before entry of executory, and for the judgment, for the satisfaction of said temporary seizure of judgment. property of the adverse party. The proceeds of the The proceeds of the sale are in custodial sale are turned over to legis. the attaching creditor. Proceeding in attachment is in rem where the defendant does not appear, and in personam where he appears in the action (Regalado, F. Remedial Law Compendium) THREE (3) STAGES in the grant of Preliminary Attachment 1. The court issues the order granting the application; 2. The writ of attachment issues pursuant to the order granting the writ; 3. The writ is implemented. Note: For the initial two stages, it is NOT necessary that jurisdiction over the person of the defendant be first obtained. HOWEVER, once the implementation of the writ commences, the court must have acquired jurisdiction over the defendant for without such jurisdiction, the court has no power or authority to act in any manner against the defendant (Mangila vs. CA, GR No. 125027, August 12, 2002). Section 2. Issuance and contents of order. – An order of attachment may be issued either ex parte or upon motion with notice and hearing by the court in which the action is pending, or by the Gene Geocaniga, Cherry Lynn Trinidad TAU MU Page 4 of 42

Sources: Herrera Vol. III 2006,

Court of Appeals or the Supreme Court, and must require the sherif of the court to attach so much of the property in the Philippines of the party against whom it is issued, not exempt from execution, as may be sufficient to satisfy the applicant's demand, unless such party makes deposit or gives a bond as hereinafter provided in an amount equal to that fixed in the order, which may be the amount sufficient to satisfy the applicant's demand or the value of the property to be attached as stated by the applicant, exclusive of costs. Several writs may be issued at the same time to the sherifs of the courts of diferent judicial regions. Cases: SIEVERT vs. CA, 168 SCRA 692 - A court which has not acquired jurisdiction over the person of defendant, cannot bind that defendant whether in the main case or in any ancillary proceeding such as attachment proceedings. The service of a petition for preliminary attachment without the prior or simultaneous service of summons and a copy of the complaint in the main case — and that is what happened in this case — does not of course confer jurisdiction upon the issuing court over the person of the defendant. Issued either ex parte or upon motion with notice and hearing by the court in which the action is pending. However, when issued ex parte, he writ cannot be enforced and may not be validly implemented unless preceded by a service of summons upon the defendant, or simultaneously accompanied by service of summons, a copy of the complaint, the application for attachment, the order of attachment and the attachment bond (Davao Light and Power Co., Inc. vs. CA, 204 SCRA 343; Manila vs. CA, 387 SCRA 162). CUARTERO vs. CA, 3rd Division, 212 SCRA 260 the only requisites for the issuance of the writ are the affidavit and bond of the applicant. No notice to the adverse party or hearing of the application is required inasmuch as the time which the hearing will take could be enough to enable the defendant to abscond or dispose of his property before a writ of attachment issues. In such a case, a hearing would render nugatory the purpose of this provisional remedy. The ruling remains good law. There is, thus, no merit in the private respondents' claim of violation of their constitutionally guaranteed right to due process. It is clear from our pronouncements that a writ of preliminary attachment may issue even before summons is served upon the defendant. However, we have likewise ruled that the writ cannot bind and affect the defendant until jurisdiction over his person is eventually obtained. Therefore, it is required that when the proper officer commences implementation of the writ of

PROVISIONAL REMEDIES 2010 San Beda Memory Aid, Atty. Geraldine Quimosing-Tiu Riano Reviewer, Syllabus

Sources: Herrera Vol. III 2006,

attachment, service of summons should be simultaneously made.

writ totally defective as the judge issuing it acts in excess of jurisdiction.

SALAS vs. ADIL, 90 SCRA 121 - A preliminary attachment is a rigorous remedy, which exposes the debtor to humiliation and annoyance, such it should not be abused as to cause unnecessary prejudice. It is, therefore, the duty of the court, before issuing the writ, to ensure that all the requisites of the law have been complied with; otherwise the judge acts in excess of his jurisdiction and the so issued shall be null and void. The authorities agree that the writ of attachment is not available in a suit for damages where the amount claimed is contingent or unliquidated.

Ratio: No notice to the adverse party or hearing of the application is required, as the time which the hearing will entail could be enough to enable the defendant abscond or dispose of his property before the writ issues (Regalado, F. Remedial Law Compendium)

“xxx but they may be issued when the plaintif's claim arises out of contract either express or implied, and the demand is liquidated, that is, the amount of the claim is not contingent, is capable of being definitely ascertained by the usual means of evidence, and does not rest in the discretion of the jury.”

TING vs. VILLARIN, 176 SCRA 532 - The complaint did not provide for a sufficient basis for the issuance of a writ of preliminary attachment. It is not enough for the complaint to ritualistic ally cite, as here, that the defendants are "guilty of fraud in contracting an obligation." An order of attachment cannot be issued on a general averment, such as one ceremoniously quoting from a pertinent rule. The need for a recitation of factual circumstances that support the application becomes more compelling here considering that the ground relied upon is "fraud in contracting an obligation." The complaint utterly failed to even give a hint about what constituted the fraud and how it was perpetrated. Fraud cannot be presumed. Section 3. Affidavit and bond required. – An order of attachment shall be granted only when it appears by the affidavit of the applicant, or of some other person who personally knows the facts, that a sufficient cause of action exists, that the case is one of those mentioned in section 1 hereof, that there is no other sufficient security for the claim sought to be enforced by the action, and that the amount due to the applicant, or the value of the property the possession of which he is entitled to recover, is as much as the sum for which the order is granted above all legal counterclaims. The affidavit, and the bond required by the next succeeding section, must be duly filed with the court before the order issues. The only requisite for the issuance of the writ of preliminary attachment are the affidavit and bond of the applicant. Note: The affidavit must contain all the allegations required; failure to do so, renders the Gene Geocaniga, Cherry Lynn Trinidad TAU MU Page 5 of 42

Contents of the Affidavit 1. A sufficient cause of action exists; 2. Case is one of those mentions in Sec. 1; 3. No other sufficient security for the claim sought to be enforced by action; 4. Amount due to the applicant or possession of which is entitled to recover is as much as the sum for which the order is granted above all legal counterclaims. Reason for the Bond The bond issued upon an application for preliminary attachment answers for all damages, incurred at whatever stage, which are sustained by reason of the attachment (CARLOS vs. SANDOVAL, 471 SCRA 266) SALGADO vs. COURT OF APPEALS, MARCH 26, 1984 – Since the attachment is a harsh and rigorous remedy which exposes the debtor to humiliation and annoyance, the rule authorizing its issuance must be strictly construed in favor of defendant. It is the duty of the court before issuing the writ to ensure that all the requisites of the law have been complied with. K.O. GLASS CONSTRUCTION vs. VALENZUELA, 116 SCRA 563 - While Pinzon may have stated in his affidavit that a sufficient cause of action exists against the defendant Kenneth O. Glass, he did not state therein that "the case is one of those mentioned in Section 1 hereof; that there is no other sufficient security for the claim sought to be enforced by the action; and that the amount due to the applicant is as much as the sum for which the order granted above all legal counter-claims." It has been held that the failure to allege in the affidavit the requisites prescribed for the issuance of a writ of preliminary attachment, renders the writ of preliminary attachment issued against the property of the defendant fatally defective, and the judge issuing it is deemed to have acted in excess of his jurisdiction. LA GRANJA, INC. vs. SAMSON, 58 PHIL. 378 It will be seen that the legal provision just cited orders the granting of a writ of attachment when it has been made to appear by affidavit that the facts mentioned by law as sufficient to warrant the issuance thereof, exist. Although the law requires nothing more than the affidavit as a means of establishing the existence of such facts, nevertheless, such affidavit must be sufficient to convince the court of their existence, the court being justified in rejecting the affidavit if it does not serve

PROVISIONAL REMEDIES 2010 San Beda Memory Aid, Atty. Geraldine Quimosing-Tiu Riano Reviewer, Syllabus

this purpose and in denying the petition for an order of attachment. The mere filing of an affidavit executed in due form is not sufficient to compel a judge to issue an order of attachment, but it is necessary that by such affidavit it be made to appear to the court that there exists sufficient cause for the issuance thereof, the determination of such sufficiency being discretionary on the part of the court. GUZMAN vs. CATOLICO, 65 PHIL. 261 – The law authorizing the issuance of a writ of preliminary attachment should, therefore, be construed strictly in favor of the judge should require that all the requisites prescribed by law be complied with, without which a judge acquires no jurisdiction to issue the writ. If he does so in spite of noncompliance with said requisites, he acts in excess of his jurisdiction and with the writ so issued by him will be null and void. Where the affidavit for attachment is fatally defective, the attachment must be held to have been improperly or irregularly issued and must be discharged, and such fatal defect cannot be cured by amendment (CU UNJIENG vs. GODDARD, 58 PHIL. 482). JARDINE MANILA FINANCE, INC. vs. COURT OF APPEALS 171 SCRA 636 – The general rule is that the affidavit is the foundation of the writ, and if none be filed or one be filed which wholly fails to set out some facts required by law to be stated therein, there is no jurisdiction and the proceedings are null and void. Section 4. Condition of applicant's bond. – The party applying for the order must thereafter give a bond executed to the adverse party in the amount fixed by the court in its order granting the issuance of the writ, conditioned that the latter will pay all the costs which may be adjudged to the adverse party and all damages which he may sustain by reason of the attachment, if the court shall finally adjudged that the applicant was not entitled there to. Bond posted by the attaching creditor answers for the damages and costs which may be adjudged to the adverse party arising from and by reason of the attachment. CALDERON vs. IAC. 155 SCRA 531 The responsibility of the surety arises "if the court shall finally adjudge that the plaintiff was not entitled thereto." In Rocco vs. Meads, 96 Phil. Reports 884, we held that the liability attaches if the plaintiff is not entitled to the attachment because the requirements entitling him to the writ are wanting, or if the plaintiff has no right to the attachment because the facts stated in his affidavit, or some of them, are untrue. It is, therefore, evident that upon the dismissal of an Gene Geocaniga, Cherry Lynn Trinidad TAU MU Page 6 of 42

Sources: Herrera Vol. III 2006,

attachment wrongfully issued, the surety is liable for damages as a direct result of said attachment. ARELLANO vs. FLOJO, 238 SCRA 72 – No bond can be confiscated to answer for the damages sustained by defendants. The judge discovered that only a promissory note in the form of an affidavit executed by the bondsmen denominated as an attachment bond appears on the record. Had respondent carefully examined the undertaking filed before he issued the writ of attachment, such a situation could have been obviated. Where a statute authorizing attachment requires, as a condition to the issuance of the writ, that a bond shall be given by plaintif to indemnify defendant for any loss or injury resulting from the attachment in case it proves to be wrongful, a failure to give such bond is fatal, and an attachment issued without the necessary bond is invalid. Section 5. Manner of attaching property. – The sherif enforcing the writ shall without delay and with all reasonable diligence attach, to await judgment and execution in the action, only so much of the property in the Philippines of the party against whom the writ is issued, not exempt from execution, as may be sufficient to satisfy the applicant's demand, unless the former makes a deposit with the court from which the writ is issued, or gives a counter-bond executed to the applicant, in an amount equal to the bond fixed by the court in the order of attachment or to the value of the property to be attached, exclusive of costs. No levy on attachment pursuant to the writ issued under section 2 hereof shall be enforced unless it is preceded, or contemporaneously accompanied, by service of summons, together with a copy of the complaint, the application for attachment, the applicant's affidavit and bond, and the order and writ of attachment, on the defendant within the Philippines. The requirement of prior or contemporaneous service of summons shall not apply where the summons could not be served personally or by substituted service despite diligent eforts, or the defendant is a resident of the Philippines temporarily absent there from, or the defendant is a non-resident of the Philippines, or the action is one in rem or quasi in rem. Note: Levy shall not be made unless preceded or contemporaneously accompanied by: (SCABO) 1. Service of summons; 2. A Copy of the complaint; 3. Application for attachment; 4. Affidavit and Bond of the application; and 5. Order and writ of attachment.

PROVISIONAL REMEDIES 2010 San Beda Memory Aid, Atty. Geraldine Quimosing-Tiu Riano Reviewer, Syllabus

BUT prior or contemporaneous service of summons shall NOT APPLY when: 1. Summons could not be served personally or by substituted service; 2. Defendant is a resident of the Philippines temporarily absent therefrom; 3. Defendant is a non-resident; and 4. The action is one in rem or quasi rem. Note: All properties exempt from execution are likewise exempt from attachment (Sec. 2, Rule 57; Sec. 13, Rule 39). Properties that cannot be attached 1. Family home under Article 53 of the Family Code; 2. Title is not in the name of the defendant unless it is shown that he has beneficial interest in property (Gotauco vs. Registry of Deeds, 59 Phil. 756); 3. The laborer’s wages shall not be subject to attachment except for debts incurred for food, shelters, clothing and medical attendance (Article 1208, NCC). HB ZACHRY vs. COURT OF APPEALS, 232 SCRA 329 – A distinction should be made between the issuance and the enforcement of the writ. The trial court has unlimited power to issue the writ upon the commencement of the action even before it acquires jurisdiction over the person of the defendant, but enforcement thereof can only be validly done after it shall have acquired such jurisdiction. OÑATE vs. ABROGAR (En Banc), 240 SCRA 659 – At the very least, then, the writ of attachment must be served simultaneously with the service of summons before the writ may be enforced. As the properties of the petitioners were attached by the sheriff before he had served the summons on them, the levies made must be considered void. While the petition for a writ of preliminary attachment may be granted and the writ itself issued before the defendant is summoned, the writ of attachment cannot be implemented until jurisdiction over the person of the defendant is obtained. OÑATE vs. ABROGAR (2nd Div), 230 SCRA 181 – An exception to the established rule on the enforcement of the writ of attachment can be made where a previous attempt to serve the summons and the writ of attachment failed due to factors beyond the control of either the plaintiff or the process server, provided that such service is effected within a reasonable period thereafter. Several reasons can be given for the exception. First, there is a possibility that a defendant, having been alerted of plaintiffs action by the attempted service of summons and the writ of attachment, would put his properties beyond the reach of the plaintiff while the latter is trying to serve the summons and the writ anew. By the time the plaintiff may have caused the service of Gene Geocaniga, Cherry Lynn Trinidad TAU MU Page 7 of 42

Sources: Herrera Vol. III 2006,

summons and the writ, there might not be any property of the defendant left to attach. Second, the court eventually acquired jurisdiction over the petitioners six days later. To nullify the notices of garnishment issued prior thereto would again open the possibility that petitioners would transfer the garnished monies while Sun Life applied for new notices of garnishment. Third, the ease by which a writ of attachment can be obtained is counter-balanced by the ease by which the same can be discharged: the defendant can either make a cash deposit or post a counter-bond equivalent to the value of the property attached. The petitioners herein tried to have the writ of attachment discharged by posting a counter-bond, the same was denied by respondent Judge on the ground that the amount of the counter-bond was less than that of Sun Life's bond. Section 6. Sheriff's return. – After enforcing the writ, the sherif must likewise without delay make a return thereon to the court from which the writ issued, with a full statement of his proceedings under the writ and a complete inventory of the property attached, together with any counterbond given by the party against whom attachment is issued, and serve copies thereof on the applicant. Note: A writ of attachment has no lifetime as distinguished from a writ of execution (Roque vs. CA, 93 SCRA 540). The new Rules fixes the lifetime of a writ of execution at five (5) years from the date of entry of judgment (Section 6, Rule 39). Section 7. Attachment of real and personal property; recording thereof. – Real and personal property shall be attached by the sherif executing the writ in the following manner: (a) Real property, or growing crops thereon, or any interest therein, standing upon the record of the registry of deed of the province in the name of the party against whom attachment is issued, or not appearing at all upon such records, or belonging to the party against whom attachment is issued and held by any other person, or standing on the records of the registry of deeds in the name of any other person, by filing with the registry of deeds a copy of the order, together with a description of the property attached, and a notice that it is attached, or that such real property and any interest therein held by or standing in the name of such other person are attached, and by leaving a copy of such order, description, and notice with the occupant of the property, if any, or with such other person or his agent if found within the province. Where the property has been brought under the operation of

PROVISIONAL REMEDIES 2010 San Beda Memory Aid, Atty. Geraldine Quimosing-Tiu Riano Reviewer, Syllabus

either the Land Registration Act or the Property Registration Decree, the notice shall contain a reference to the number of the certificate of title, the volume and page in the registration book where the certificate is registered, and the registered owner or owners thereof. The registrar of deed must index attachments filed under this section in the names of the applicant, the adverse party, or the person by whom the property is held or in whose name it stands in the records. If the attachment is not claimed on the entire area of the land covered by the certificate of title, a description sufficiently accurate for the identification of the land or interest to be afected shall be included in the registration of such attachment; (b) Personal property capable of manual delivery, by taking and safely keeping it in his custody, after issuing the corresponding receipt therefore; (c) Stocks or shares, or an interest in stocks or shares, of any corporation or company, by leaving with the president or managing agent thereof, a copy of the writ, and a notice stating that the stock or interest of the party against whom the attachment is issued is attached in pursuance of such writ; (d) Debts and credits, including bank deposits, financial interest, royalties, commissions, and other personal property not capable of manual delivery, by leaving with the person owing such debts, or having in his possession or under his control, such credits or other personal property, or with his agent, a copy of the writ, and notice that the debts owing by him to the party against whom attachment is issued, and the credits and other personal property in his possession, or under his control, belonging to said party, are attached in pursuance of such writ; (e) The interest of the party whom attachment is issued in property belonging to the estate of the decedent, whether as heir, legatee, or devisee, by serving the executor or administrator or other personal representative of the decedent with a copy of the writ and notice that said interest is attached. A copy of said writ of attachment and of said notice shall also be filed in the office of the clerk of the court in which said estate is being settled and served upon the heir, legatee or devisee concerned. If the property sought to be attached is in custodia legis, a copy of the writ of attachment shall be filed with the proper court or quasi-judicial agency, and notice of the attachment served upon the custodian of such property. Gene Geocaniga, Cherry Lynn Trinidad TAU MU Page 8 of 42

Sources: Herrera Vol. III 2006,

What may be the subject of attachment: 1. Real property or any interest therein; 2. Personal property capable of manual delivery; 3. Stocks or shares or interest therein; 4. Debts and credits, including bank deposits, financial interest, royalties, commissions and other personal property not capable of manual delivery; or 5. Interest of the party against whom attachment is issued in property belonging to the estate of the decedent, whether as heir, legatee, or devisee. Par. (3) and (4) refer to garnishment. By such notice of garnishment, the court acquires jurisdiction over the garnishee and the latter becomes a forced intervenor in the case. Debt means some definite amount of money, ascertained or capable of being ascertained, which may be paid over to the sheriff or to the court, while credits and personal property are something belonging to the defendant, but in possession and under the control of the garnishee (Feria, Civil Procedure Annotated). 

Property legally attached is property in custodial egis and cannot be interfered with without the permission of the proper court, but this is confined to cases where the property belongs to the defendant or one in which the defendant has proprietary interest.

Principle of Seniority of Liens Where the property attached by the judgment creditor had previously been mortgaged, the judgment creditor’s lien is inferior to that of the mortgagee which must first be satisfied in the event of foreclosure. In reality, what was attached by the judgment creditor was merely the judgment debtor’s right or equity of redemption (Top Rate International Services, Inc. vs. IAC, G.R. No. 67496, July 7, 1986). CASES: SIARI VALLEY ESTATES vs. LUCASAN, 109 PHIL. 294 – The requirement that the notice of levy should contain a reference to the number of the certificate of title and the volume and page in the registration book where the certificate is registered is made in order that the debtor as well as a third person may be properly informed of the particular land or property that is under the custody of the court. This can only be accomplished by making a reference to the certificate of title covering the property. The situation differs if the land is unregistered in which case it is enough that the notice be registered under Act 3344. Since the notice of levy made by the sheriff as regards parcel number 1 which is a registered land contains no reference to the number of its certificate of title and the volume and page in the registry book where the title is registered, it follows that said notice is legally ineffective and

PROVISIONAL REMEDIES 2010 San Beda Memory Aid, Atty. Geraldine Quimosing-Tiu Riano Reviewer, Syllabus

as such did not have the effect of binding the property for purposes of execution. Consequently, the sale carried out by virtue of said levy is also invalid and of no legal effect. RAVANERA vs. IMPERIAL, 93 SCRA 589 – A judgment debtor is entitled o notice of levy if he is the occupant of the land. What is required is that the judgment debtor must be notified of the auction sale before the actual date of sale. OBAÑA vs. COURT OF APPEALS 172 SCRA 866 – In an action strictly in personam personal service of summons within the forum is essential to the acquisition of jurisdiction over the person of the defendant who does not voluntarily submit himself to the authority of the court. In other words, summons by publication cannot — consistently with the due process clause in the Bill of Rights — confer upon the court jurisdiction over said defendants. It should be noted that Section 7 of Rule 57 requires that in attaching real property a copy of the order, description, and notice must be served on the occupant. The attachment was void from the beginning. The action in personam which required personal service was never converted into an action in rem where service by publication would have been valid. The propriety of service of summons by publication is not dependent upon the technical characterization of the action as one in rem or quasi in rem but upon compliance with the requirements for the situations found in Sections 16, 17, and 18 of Rule 14 of the Rules of Court. We declared the service of summons by publication as "legally and constitutionally vitiated." In the present case, however, the action was one in personam. The service was equally void and of no effect. DU vs. STRONGHOLD INSURANCE, 433 SCRA 43 – Preference is given to a duly registered attachment over a subsequent notice of lis pendens, even if the beneficiary of the notice acquired the subject property before the registration of the attachment. Under the torrens system, the auction sale of an attached realty retroacts to the date the levy was registered. WALKER vs. McMICKING, 14 PHIL. 688 – To constitute a valid levy the officer must take actual possession and actual custody of the property attached as far as practicable under the circumstances. Such property must be in his substantial presence and possession – adverse to and exclusive of the attachment debtor. VILLANUEVA-FABELLA vs. JUDGE RALPH LEE, 419 SCRA 440 – To constitute a valid levy of attachment, the officer levying it must have "actual possession of the property attached." He must put himself in [a] position to, and must assert and, in fact, enforce a dominion over the property adverse to and exclusive of the attachment debtor. To this rule we add that the Gene Geocaniga, Cherry Lynn Trinidad TAU MU Page 9 of 42

Sources: Herrera Vol. III 2006,

officer cannot even deliver the property to the attachment creditor, as the parties must await the judgment in the action. The levied property must be in the “substantial presence and possession” of the levying officer, who "cannot act as special deputy sherif of any party litigant." The officer may put someone "in possession of the property for the purpose of guarding it," but the former cannot be "relieve[d] x x x from liability to the parties interested in said attachment." The duty of sheriffs to execute a writ issued by a court is purely ministerial, not discretionary. Clearly, they must keep the levied property safely in their custody, not in that of any of the parties. They exercise no discretion in this regard, for attachment is harsh, extraordinary and summary in nature -- a "rigorous remedy which exposes the debtor to humiliation and annoyance." SEBASTIAN vs. VALINO, 224 SCRA 256 – Under the Revised Rules of Court, the property seized under a writ of replevin is not to be delivered immediately to the plaintif. The sherif must retain it in his custody for five days and shall return it to the defendant if the latter requires its return and files a counterbond (Sec. 4, Rule 60, Revised Rules of Court). In violation of said Rule, respondent immediately turned over the seized articles to PDCP. His claim that the Office of the Regional Sheriff did not have a place to store the seized items, cannot justify his violation of the Rule. As aptly noted by the Investigating Judge, the articles could have been deposited in a bonded warehouse. VILLAREAL vs. RARAMA, 247 SCRA 493 – When a writ is placed in the hands of a sherif it is his duty, in the absence of any instructions to the contrary, to proceed with reasonable celerity and promptness to execute it according to its mandate. He is to execute the directives of the court therein strictly in accordance with the letter thereof and without any deviation therefrom. Hence, a sheriff has no authority to levy on execution upon the property of any person other than that of the judgment debtor. If he does so, the writ of execution affords him no justification, for such act is not in obedience to the mandate of the writ. As long as the sheriff confines his acts to the authority of the process, he is not liable, but all of his acts which are not justified by the writ are without authority of law. This is so because if an execution against one man would excuse the sheriff for taking the property of another, every citizen would be at his mercy and none could call his estate his own. BALANTES vs. OCAMPO III, 242 SCRA 327 – The rule is that when a writ is placed in the hands of a sheriff, it is his duty, in the absence of instructions, to proceed with reasonable celerity and promptness to execute it according to its mandate. He may not apply his discretion as to whether to execute it or not.

PROVISIONAL REMEDIES 2010 San Beda Memory Aid, Atty. Geraldine Quimosing-Tiu Riano Reviewer, Syllabus

ELIPE vs. FABRE, 241 SCRA 249 – Indeed, as clearly stated in the Manual for Clerks of Court, a sheriff, to whom a valid writ or process is delivered to be levied upon a property within his jurisdiction, is liable to the person in whose favor the process or writ runs if he fails to make a levy upon property owned by the judgment debtor within his jurisdiction and by reason thereof the judgment creditor is injured. It is omission not dependent upon intentional wrong or negligent omission to seize property of judgment debtor. NBI vs. TULIAO, MARCH 24, 1997 – Clearly, respondent's act of leaving the passenger jeep in the possession and control of the creditor did not satisfy the foregoing requirements of the Rules; neither did it conform to the plainly worded RTC order. The note in the receipt that imposed on Ignacio the obligation to produce the same whenever required by the court was no compliance either, because it did not establish that the property was in respondent sheriff's substantial presence and possession. Respondent fell short of his obligation to take and safely keep the attached property "in his capacity." He cannot feign ignorance of this duty as he himself correctly cited an early decision of this Court explaining a sheriff's duty in attachment, as follows: . . . A verbal declaration of seizure or service of a writ of attachment is not sufficient. There must be an actual taking of possession and placing of the attached property under the control of the officer or someone representing him. (Hollister vs. Goodale, 8 Conn., 332, 21 Am. Dec., 674; Jones vs. Howard, 99 Ga., 451, 59 Am. St. Rep., 231.)

ROQUE vs. COURT OF APPEALS, 93 SCRA 540 – Constructive possession should be held sufficient where actual possession is not feasible, particularly when it was followed up by the actual seizure of the property as soon as that could possibly be effected. In case of a vessel, levy is constructively made by the registration of the same with the Philippine Coast Guard. SUMMIT TRADING vs. AVENDANO, 135 SCRA 397 – It is true that Saquilayan is not among the persons mentioned in Section 13. However, she, being under the control of Summit Trading, has not explained what she has done with the summons and complaint. The logical assumption is that she delivered it to her boss, the president of Summit Trading. As already stated, she received a copy of the decision and Summit Trading became aware of it. Under the facts of this case, Saquilayan, being the secretary of the president (whose contact with the outside world is normally through his secretary), may be regarded as an "agent" within the meaning of section 13. Hence summons was validly served upon Summit Trading. CHEMPHIL EXPORT & IMPORT vs. CA, 251 SCRA 286 – A secretary's major function is to assist his Gene Geocaniga, Cherry Lynn Trinidad TAU MU Page 10 of 42

Sources: Herrera Vol. III 2006,

or her superior. He/she is in effect an extension of the latter. Obviously, as such, one of her duties is to receive letters and notices for and in behalf of her superior, as in the case at bench. The notice of garnishment was addressed to and was actually received by Chemphil's president through his secretary who formally received it for him. Thus, in one case, we ruled that the secretary of the president may be considered an "agent" of the corporation and held that service of summons on him is binding on the corporation. Note: Summit and Chemphil rulings have been amended by the 1997 Rules of Civil Procedure. Section 11 of Rule 14 provides: Sec. 11. Service upon domestic private juridical entity. – When the defendant is a corporation, partnership or association organized under the laws of the Philippines with a juridical personality, service may be made on the president, managing partner, general manager, corporate secretary, treasurer, or in-house counsel.

TAYABAS LAND CO. vs. SHARRUF, 41 PHIL. 382 – A judgment for a sum of money is, as to the party entitled to payment, a credit; and as to the party who ought to pay the money, a debt. Furthermore, the interest of the creditor in such a judgment is clearly property, though not capable of manual delivery. Debts, credits, and other property not capable of manual delivery are to be dealt with in a different manner from that prescribed in case of the execution of tangible property; for while tangible property is proceeded with by seizure and sale under execution, debts and credits are to be attached by the citation of the debtor. The proceeding thus indicated as proper, in order to subject a debt or credit is known in American civil procedure as the process of garnishment; and it may be truly said that garnishment is one of the simplest processes, and the least involved in technicalities, of any proceeding known to the law. It consists in the citation of some stranger to the litigation, who is debtor to one of the parties to the action. By this means such debtor stranger becomes a forced intervenor; and the court, having acquired jurisdiction over his person by means of the citation, requires him to pay his debt, not to his former creditor, but to the new creditor, who is creditor in the main litigation. It is merely a case of involuntary novation by the substitution of one creditor for another. Upon principle the remedy is a species of attachment or execution for reaching any property pertaining to a judgment debtor which may be found owing to such debtor by a third person. Section 8. Effect of attachment of debts, credits and all other similar personal property. – All persons having in their possession or under their control any credits or other similar personal property belonging to the party against whom attachment is issued, or owing any debts to him, at the time of service

PROVISIONAL REMEDIES 2010 San Beda Memory Aid, Atty. Geraldine Quimosing-Tiu Riano Reviewer, Syllabus

upon them of the copy of the writ of attachment and notice as provided in the last preceding section, shall be liable to the applicant for the amount of such credits, debts or other similar personal property, until the attachment is discharged, or any judgment recovered by him is satisfied, unless such property is delivered or transferred, or such debts are paid, to the clerk, sherif, or other proper officer of the court issuing the attachment. It is not necessary to serve summons upon the garnishee in order that the trial court may acquire jurisdiction. All that is necessary is the service upon him of the writ of garnishment (Perla Compania de Seguros vs. Ramolete, G.R. No. 60884, November 13, 1991) Notes: Garnishment – a specie of attachment by means of which the plaintiff seeks to subject to his claim property of the defendant in the hands of a stranger to the litigation or money owed by such stranger to the defendant (Engineering and Construction vs. NPC, 168 SCRA 9). Obligation of the Garnishee – by means of the citation, the stranger becomes a forced intervenor required to pay his debt not to his former creditor, but to the new creditor, who is the creditor in the main litigation. The garnishee has no choice but to obey the garnishment (RCBC vs. Judge Castro, 168 SCRA 49). CASES: ENGINEERING CONSTRUCTION vs. NPC, 168 SCRA 9 – A garnishee, after having been judicially compelled to pay the amount of the judgment represented by funds in its possession belonging to the judgment debtor, should be released from all responsibilities over such amount after delivery thereof to the sheriff. The property attached is brought in custodia legis. MANILA REMNANT CO. vs. COURT OF APPEALS, 231 SCRA 281 – Garnishment is a species of attachment for reaching credits belonging to the judgment debtor and owing to him from a stranger to the litigation. It is an attachment by means of which the plaintiff seeks to subject to his claim property of the defendant in the hands of a third person or money owed by such third person or garnishee to the defendant. The rules on attachment also apply to garnishment proceedings. A garnishment order shall be lifted if it established that: a. The party whose accounts have been garnished has posted a counterbond or has made the requisite cash deposit; b. The order was improperly or irregularly issued as where there is no ground for garnishment or the affidavit and/or bond filed therefor are defective or insufficient;

Gene Geocaniga, Cherry Lynn Trinidad TAU MU Page 11 of 42

Sources: Herrera Vol. III 2006,

c. The property attached is exempt from execution, hence exempt from preliminary attachment or d. The judgment is rendered against the attaching or garnishing creditor. Partial execution of the judgment is not included in the above enumeration of the legal grounds for the discharge of a garnishment order. Neither does the petitioner's willingness to reimburse render the garnishment order unnecessary. As for the counterbond, the lower court did not err when it fixed the same at P500,000.00. As correctly pointed out by the respondent court, that amount corresponds to the current fair market value of the property in litigation and was a reasonable basis for determining the amount of the counterbond. NATIONAL BANK vs. OLUTANGA, 54 PHIL. 346 – When a person has funds in his possession belonging to a debtor, and said funds are attached by a creditor of the latter, said person is relieved from all responsibility to said creditor if he is judicially compelled to deliver said funds to the aforesaid debtor. PERLA COMPANIA DE SEGUROS vs. RAMOLETE, 203 SCRA 487 – Through service of the writ of garnishment, the garnishee becomes a ‘virtual party’ to, or a ‘forced intervenor’ in, the case and the trial court thereby acquires jurisdiction to bind him to compliance with all orders and processes of the trial court with a view to the complete satisfaction of the judgment. TEC BI & CO. vs. CHARTERED BANK OF INDIA, 41 PHIL. 596 – The remedy of a judgment creditor against the garnishee is to either enforce his claim in the same case or in a separate action. CONSOLIDATED BANK & TRUST CORP. vs. IAC, 150 SCRA 591 – The rule is well settled that when a writ of attachment has been levied on real property or any interest therein belonging to the judgment debtor, the levy thus effected creates a lien which nothing can destroy but its dissolution. VALDEVIESO vs. DAMALERIO, 451 SCRA 664 – The settled rule is that levy on attachment, duly registered, takes preference over a prior unregistered sale. This result is a necessary consequence of the fact that the property involved was duly covered by the Torrens system which works under the fundamental principle that registration is the operative act which gives validity to the transfer or creates a lien upon the land. BF HOMES, INC. vs. COURT OF APPEALS, 190 SCRA 262 – It has been held that the lien obtained by attachment stands upon as high equitable grounds as a mortgage lien: "The lien or security obtained by an attachment even before judgment, is a fixed and positive security, a specific lien, and, although whether it will ever be made available to the creditor

PROVISIONAL REMEDIES 2010 San Beda Memory Aid, Atty. Geraldine Quimosing-Tiu Riano Reviewer, Syllabus

depends on contingencies, its existence is in no way contingent, conditioned or inchoate. It is a vested interest, an actual and substantial security, affording specific security for satisfaction of the debt put in suit, which constitutes a cloud on the legal title, and is as specific as if created by virtue of a voluntary act of the debtor and stands upon as high equitable grounds as a mortgage." An attachment lien continues until the debt is paid, or sale is had under execution issued on the judgment or until judgment is satisfied, or the attachment discharged or vacated in the same manner provided by law. CHEMPHIL EXPORT & IMPORT vs. CA, 251 SCRA 286 – The rule established in the aforequoted cases still applies, even more so since the terms of the agreement have to be complied with in full by the parties thereto. The parties to the compromise agreement should not be deprived of the protection provided by an attachment lien especially in an instance where one reneges on his obligations under the agreement. Moreover, a violation of the terms and conditions of a compromise agreement entitles the aggrieved party to a writ of execution. ABENOJAR vs. COURT OF APPEALS, APRIL 18, 1995 – The non-fulfillment of the terms and conditions of a compromise agreement approved by the Court justifies execution thereof and the issuance of the writ for said purpose is the Court's ministerial duty enforceable by mandamus. A judicial compromise may be enforced by a writ of execution. If a party fails or refuses to abide by the compromise, the other party may enforce the compromise or regard it as rescinded and insist upon his original demand. If we were to rule otherwise, we would in effect create a back door by which a debtor can easily escape his creditors. Consequently, we would be faced with an anomalous situation where a debtor, in order to buy time to dispose of his properties, would enter into a compromise agreement he has no intention of honoring in the first place. The purpose of the provisional remedy of attachment would thus be lost. It would become, in analogy, a declared and toothless tiger (Canonizado vs. Benitez, 127 SCRA 610). REPUBLIC OF THE PHILIPPINES vs. SALUDARES, 327 SCRA 449 – Special adjective tools or devices were provided by the Revolutionary Government for the recovery of that "ill-gotten wealth." These took the form of provisional remedies akin to preliminary attachment (Rule 57), writ of seizure of personalty (Rule 60) and receivership (Rule 59). They were (a) sequestration and (b) freeze orders, as regards "unearthed instance of 'illgotten wealth'; and (c) provisional takeover, as regards 'business enterprises and properties taken over by the government of the Marcos Administration or by entities or persons close to former President Marcos." Gene Geocaniga, Cherry Lynn Trinidad TAU MU Page 12 of 42

Sources: Herrera Vol. III 2006,

Executive Orders Re Sequestration, Freezing and Takeover These special remedies were prescribed and defined in Executive Orders Numbered 1 and 2, promulgated by President Corazon C. Aquino in March, 1986. Their validity and propriety were sustained by this Court on May 27, 1987, against claims that they were unconstitutional as being bills of attainder, or as violative of the right against self-incrimination and the guaranty against unreasonable searches and seizures. In the same case, the Court also set the parameters for and restrictions on the proper exercise of the remedies." In BASECO vs. PCGG, 150 SCRA 181, 182 (1987), sequestration is defined as the process, which may be employed as a conservatory writ whenever the right of the property is involved, to preserve, pending litigation, specific property subject to conflicting claims of ownership or liens and privileges. The Court also noted the relationship between attachment and receivership, on one hand, and sequestration, freeze order and provisional takeover on the other. The latter there are ancillary remedies in prosecuting the ill-gotten wealth of the previous Marcos regime. The Court observed that sequestration, freezing and provisional takeover are akin to the provisional remedy of preliminary attachment or receivership. By an order of attachment, a sheriff seizes property of a defendant in a civil suit so that it may stand as security for the satisfaction of any judgment that may be obtained, and not disposed of, or dissipated, or lost intentionally, or otherwise, pending the action. When a writ of attachment has been levied on real property or any interest therein belonging to the judgment debtor, the levy creates a lien which nothing can destroy but its dissolution. This well-settled rule is likewise applicable to a writ of sequestration. Where the disputed properties were already under custodia legis by virtue of a valid writ of sequestration issued by the PCGG when respondent Judge Saludares issued the assailed writ of attachment in favor of private respondent Hung Ming Kuk, said writ of the PCGG could not be interfered with by the RTC because the PCGG is a coordinate and co-equal body. The PCGG had acquired by operation of law the right of redemption over the property until after the final determination of the case or until its dissolution. Section 9. Effect of attachment of interest in property belonging to the estate of a decedent. – The attachment of the interest of an heir, legatee, or devisee in the property belonging to the estate of a decedent shall not impair the power of the executor, administrator, or other personal representative of the decedent over such property for the purpose of administration. Such personal representative, however, shall report the attachment to the court when any petition for distribution is filed, and in

PROVISIONAL REMEDIES 2010 San Beda Memory Aid, Atty. Geraldine Quimosing-Tiu Riano Reviewer, Syllabus

the order made upon such petition, distribution may be awarded to such heir, legatee, or devisee, but the property attached shall be ordered delivered to the sherif making the levy, subject to the claim of such heir, legatee, or devisee, or any person claiming under him. Section 10. Examination of party whose property is attached and persons indebted to him or controlling his property; delivery of property to sheriff. – Any person owing debts to the party whose property is attached or having in his possession or under his control any credit or other personal property belonging to such party, may be required to attend before the court in which the action is pending, or before a commissioner appointed by the court, and be examine on oath respecting the same. The party whose property is attached may also be required to attend for the purpose of giving information respecting his property, and may be examined on oath. The court may, after such examination, order personal property capable of manual delivery belonging to him, in the possession of the person so required to attend before the court, to be delivered to the clerk of the court or sherif on such terms as may be just, having reference to any lien thereon or claim against the same, to await the judgment in the action.

Sources: Herrera Vol. III 2006,

In case the property attached is perishable in nature, or that the interests of all the parties will be subserved. Perishable – ordinarily means subject to a speedy and natural decay (e.g. fruits, vegetables, dairy products, meat). But if the time contemplated is necessarily long, the term may include material depreciation in value.

If the garnishee does not admit the indebtedness or he claims the property, the controversy must be determined in an independent action (Bucra Corp. vs. Macadaeg, 84 Phil. 493).

Section 12. Discharge of attachment upon giving counterbond. – After a writ of attachment has been enforced, the party whose property has been attached, or the person appearing on his behalf, may move for the discharge of the attachment wholly or in part on the security given. The court shall, after due notice and hearing, order the discharge of the attachment if the movant makes a cash deposit, or files a counter-bond executed to the attaching party with the clerk of the court where the application is made, in an amount equal to that fixed by the court in the order of attachment, exclusive of costs. But if the attachment is sought to be discharged with respect to a particular property, the counterbond shall be equal to the value of that property as determined by the court. In either case, the cash deposit or the counter-bond shall secure the payment of any judgment that the attaching party may recover in the action. A notice of the deposit shall forth with be served on the attaching party. Upon the discharge of an attachment in accordance with the provisions of this section, the property attached, or the proceeds of any sale thereof, shall be delivered to the party making the deposit or giving the counter-bond, or to the person appearing on his behalf, the deposit or counter-bond aforesaid standing in place of the property so released. Should such counter-bond for any reason to be found to be or become insufficient, and the party furnishing the same fail to file an additional counter-bond, the attaching party may apply for a new order of attachment.

Section 11. When attached property may be sold after levy on attachment and before entry of judgment. – Whenever it shall be made to appear to the court in which the action is pending, upon hearing with notice to both parties, that the party attached is perishable, or that the interests of all the parties to the action will be will be subserved by the sale thereof, the court may order such property to be sold at public auction in such manner as it may direct, and the proceeds of such sale to be deposited in court to abide the judgment in the action.

THE MANILA REMNANT CO. vs. CA, 231 SCRA 281 A garnishment order shall be lifted if it established that: a. The party whose accounts have been garnished has posted a counterbond or has made the requisite cash deposit (Section 12); b. The order was improperly or irregularly issued (Section 13) as where there is no ground for garnishment (Section 1) or the affidavit and/or bond filed therefor are defective or insufficient (Section 3); c. The property attached is exempt from execution, hence exempt from preliminary attachment (Section 2 and 5); or

Note: The examination in Rule 39 is proper only when the writ of execution is returned unsatisfied. Examination under this section is not subject to a preliminary condition but is anticipatory in nature and may be resorted to even if the writ of attachment was not returned because no property could be found to be levied upon thereunder.

Gene Geocaniga, Cherry Lynn Trinidad TAU MU Page 13 of 42

PROVISIONAL REMEDIES 2010 San Beda Memory Aid, Atty. Geraldine Quimosing-Tiu Riano Reviewer, Syllabus

d. The judgment is rendered against the attaching or garnishing creditor (Section 19). INSULAR SAVINGS BANK vs. CA, JUNE 15, 2005 – As may be noted, the amount of the counterattachment bond is, under the terms of the aforequoted Section 12, to be measured against the value of the attached property, as determined by the judge to secure the payment of any judgment that the attaching creditor may recover in the action. Albeit not explicitly stated in the same section and without necessarily diminishing the sound discretion of the issuing judge on matters of bond approval, there can be no serious objection, in turn, to the proposition that the attached property - and logically the counterbond necessary to discharge the lien on such property - should as much as possible correspond in value to, or approximately match the attaching creditor’s principal claim. Else, excessive attachment, which ought to be avoided at all times, shall ensue. The sheriff is required to attach only so much of the property of the party against whom the order is issued as may be sufficient to satisfy the applicant’s demand, the amount of which is stated in the order, unless a deposit is made or a counter-bond is given equal to said amount. However, if the value of the property to be attached is less than the amount of the demand, the amount of the applicant’s bond may be equal to the value of said property, and the amount of the adverse party’s deposit or counter-bond may be equal to the applicant’s bond. The writ of preliminary attachment is issued upon approval of the requisite bond. Unlike the former Section 12 of Rule 57 of the Rules of Court where the value of the property attached shall be the defining measure in the computation of the discharging counterattachment bond, the present less stringent Section 12 of Rule 57 provides that the court shall order the discharge of attachment if the movant “makes a cash deposit, or files a counter-bond . . . in an amount equal to that fixed by the court in the order of attachment, exclusive of costs.” Not being in the nature of a penal statute, the Rules of Court cannot be given retroactive efect. K.O. GLASS CONSTRUCTION vs. VALENZUELA, 116 SCRA 563 – Finally, it appears that the petitioner has filed a counterbond to answer for any judgment that may be rendered against the defendant. Upon receipt of the counter-bond the respondent Judge should have discharged the attachment pursuant to Section 12, Rule 57 of the Revised Rules of Court. The filing of the counter-bond will serve the purpose of preserving the defendant's property and at the same time give the plaintiff security for any judgment that may be obtained against the defendant. Gene Geocaniga, Cherry Lynn Trinidad TAU MU Page 14 of 42

Sources: Herrera Vol. III 2006,

SECURITY PACIFIC ASSURANCE vs. TRIA-INFANTE, 468 SCRA 526 – Under the Rules, there are two (2) ways to secure the discharge of an attachment. First, the party whose property has been attached or a person appearing on his behalf may post a security. Second, said party may show that the order of attachment was improperly or irregularly issued. BELISLE INVESTMENT AND FINANCE CO., INC. V. STATE INVESTMENT HOUSE, INC., 151 SCRA 630 – The Court of Appeals correctly ruled that the mere posting of a counterbond does not automatically discharge the writ of attachment. It is only after hearing and after the judge has ordered the discharge of the attachment if a cash deposit is made or a counterbond is executed to the attaching creditor is filed, that the writ of attachment is properly discharged under Section 12, Rule 57 of the Rules of Court . On this score, we hew to the pertinent ratiocination of the Court of Appeals as regards the heretofore cited provision of Section 12, Rule 57 of the 1997 Rules of Civil Procedure, on the discharge of attachment upon giving counterbond: . . . The filing of the counterattachment bond by petitioner Villaluz has discharged the attachment on the properties and made the petitioner corporation liable on the counter-attachment bond. This can be gleaned from the “DEFENDANT’S BOND FOR THE DISSOLUTION OF ATTACHMENT”, which states that Security Pacific Assurance Corporation, as surety, in consideration of the dissolution of the said attachment jointly and severally, binds itself with petitioner Villaluz for any judgment that may be recovered by private respondent Anzures against petitioner Villaluz. The contract of surety is only between petitioner Villaluz and petitioner corporation. The petitioner corporation cannot escape liability by stating that a court approval is needed before it can be made liable. This defense can only be availed by petitioner corporation against petitioner Villaluz but not against third persons who are not parties to the contract of surety. The petitioners hold themselves out as jointly and severally liable without any conditions in the counterattachment bond. The petitioner corporation cannot impose requisites before it can be made liable when the law clearly does not require such requisites to be fulfilled.

CALDERON vs. IAC, 155 SCRA 531 – While Section 12, Rule 57 of the Rules of Court provides that upon the filing of a counterbond, the attachment is discharged or dissolved, nowhere is it provided that the attachment bond is rendered void and inefective upon the filing of counterbond. The responsibility of the surety arises “if the court shall finally adjudge that the plaintiff was not entitled thereto.” The liability attaches if the plaintif is not entitled to the attachment because the requirements entitling him to the writ are wanting, or if the plaintiff has no right to the attachment because the facts

PROVISIONAL REMEDIES 2010 San Beda Memory Aid, Atty. Geraldine Quimosing-Tiu Riano Reviewer, Syllabus

stated in his affidavit, or some of them, are untrue. It is, therefore, evident that upon the dismissal of an attachment wrongfully issued, the surety is liable for damages as a direct result of said attachment. Whether the attachment was discharged by either of the two (2) ways indicated in the law, i.e., by filing a counterbond or by showing that the order of attachment was improperly or irregularly issued, the liability of the surety on the attachment bond subsists because the final reckoning is when "the Court shall finally adjudge that the attaching creditor was not entitled" to the issuance of the attachment writ in the first place. The attachment debtor cannot be deemed to have waived any defect in the issuance of the attachment writ by simply availing himself of one way of discharging the attachment writ, instead of the other. Moreover, the filing of a counterbond is a speedier way of discharging the attachment writ maliciously sought out by the attaching creditor instead of the other way, which, in most instances like in the present case, would require presentation of evidence in a full-blown trial on the merits and cannot easily be settled in a pending incident of the case. Section 13. Discharge of attachment on other grounds. –The party whose property has been ordered attached may file a motion with the court in which the action is pending, before or after levy or even after the release of the attached property, for an order to set aside or discharged the attachment on the ground that the same was improperly or irregularly issued or enforced, or that the bond is insufficient. If the attachment is excessive, the discharge shall be limited to the excess. If the motion be made on affidavits on the part of the movant but not otherwise, the attaching party may oppose the motion by counter-affidavits or other evidence in addition to that on which the attachment was made. After due notice and hearing, the court shall order the setting aside or the corresponding discharge of the attachment if it appears that it was improperly or irregularly issued or enforced, or that the bond is insufficient, or that the attachment is excessive, and the defect is not cured forthwith. Grounds for discharge of Preliminary Attachment: [CI-JEE] 1. Debtor has posted a Counterbond or has made the requisite cash deposit (Sec. 12); 2. Attachment was improperty or Irregularly issued (Sec. 13) as where there is no ground for attachment, or affidavit and/or bond filed therefore are defective or insufficient (Sec. 3); 3. Judgment is rendered against the attaching creditor (Sec. 19); Gene Geocaniga, Cherry Lynn Trinidad TAU MU Page 15 of 42

Sources: Herrera Vol. III 2006,

4. Attachment is Excessive, but the discharge shall be limited to the excess (Sec. 13); and 5. Property attached is Exempt from execution. An ex parte discharge or suspension of the attachment is a disservice to the orderly administration of justice and nullifies the underlying role and purpose of preliminary attachment in preserving the rights of the parties pendente lite as an ancillary remedy. CASES: JOPILLO, JR. vs. COURT OF APPEALS, 167 SCRA 247 – A motion to discharge a writ of attachment on the ground that the same was improperly or irregularly issued may be established by the affidavits submitted by the party whose property has been attached or such other evidence presented at the hearing of the motion. The attaching creditor may oppose the same by counter-affidavits or other evidence in addition to that with which the attachment was made. If the movant establishes that the facts stated in the plaintiffs affidavit or some of them, are shown to be false or untrue, the writ of attachment may be considered as improperly or irregularly issued. The determination of the existence of said grounds to discharge a writ of attachment rests in the sound discretion of the lower court. Even assuming that the trial court committed an error in denying the motion to discharge the writ of attachment the error (if it is an error at all) is an error in judgment which cannot be corrected through the extraordinary remedy of certiorari but by an ordinary appeal at the proper time. MINDANAO SAVINGS LOAN vs. CA, 172 SCRA 480 – Objections against the writ may no longer be invoked once a counterbond is filed for its lifting or dissolution. The grounds invoked for the issuance of the writ form the core of the complaint and it is right away obvious that a trial on the merits was necessary. The merits of a main action are not triable in a motion to discharge an attachment otherwise an applicant for dissolution could force a trial on the merits on his motion. Indeed, after the defendant has obtained the discharge of the writ of attachment by filing a counterbond under Section 12, Rule 57 of the Rules of Court, he may not file another motion under Section 13, Rule 57 to quash the writ for impropriety or irregularity in issuing it. The reason is simple. The writ had already been quashed by filing a counterbond, hence, another motion to quash it would be pointless. Moreover, when the ground for the issuance of the writ is also the core of the complaint, the question of whether the plaintiff was entitled to the writ can only be determined after, not before, a full-blown trial on the merits of the case. The merits of a main action are not triable in a motion to discharge an attachment, otherwise an applicant for the

PROVISIONAL REMEDIES 2010 San Beda Memory Aid, Atty. Geraldine Quimosing-Tiu Riano Reviewer, Syllabus

dissolution could force a trial on the merits of the case on this motion. UY KIMPANG vs. JAVIER, 65 PHIL. 170 – May the defendant, after procuring the dissolution of the attachment by filing a counterbond, ask for the cancellation of the counterbond on the ground that the order of attachment was improperly issued? The obligors in the bond are absolutely liable for the amount of any judgment that the plaintiff may recover in the action without reference to the question of whether the attachment was rightfully or wrongfully issued. BENITEZ vs. IAC, 154 SCRA 41 – An action against a party who has been guilty of fraud in contracting the debt or incurring the obligation upon which the action is brought, the defendant is not allowed to file a motion to dissolve the attachment under Section 13 by offering to show the falsity of the factual averments in the plaintiff’s application and affidavits on which the writ was based – and consequently that the writ based thereon had been improperly or irregularly issued – an attachment may not be dissolved by a showing of its irregular or improper issuance. The reason is that the hearing on such a motion for dissolution of the writ would be tantamount to a trial of the merits of the action. In other words, the merits of the action would be ventilated at a mere hearing of a motion, instead of at the regular trial. Therefore, when the writ of attachment is of this nature, the only way it can be dissolved is by a counterbond. DAVAO LIGHT & POWER vs. CA, 204 SCRA 343 – Aside from the filing of a counterbond, a preliminary attachment may also be lifted or discharged on the ground that it has been irregularly or improperly issued, in accordance with Section 13 of Rule 57. Like the first, this second mode of lifting an attachment may be resorted to even before any property has been levied on. Indeed, it may be availed of after property has been released from a levy on attachment, as is made clear by Section 13. CUARTERO vs. COURT OF APPEALS, 212 SCRA 260 – An attachment may not be dissolved by a showing of its irregular or improper issuance if it is upon a ground which is at the same time the applicant's cause of action in the main case since an anomalous situation would result if the issues of the main case would be ventilated and resolved in a mere hearing of a motion. FILINVEST CREDIT CORP. vs. RELOVA, 117 SCRA 420 – It is not enough for the complaint to ritualistically cite, as here, that the defendants are guilty of fraud in contracting an obligation. An order of attachment cannot be issued on a general averment, such as one ceremoniously quoting from a pertinent rule. The need for a recitation of factual circumstances that support the application becomes more compelling here considering that the ground relied upon is fraud in contracting an obligation. The complaint Gene Geocaniga, Cherry Lynn Trinidad TAU MU Page 16 of 42

Sources: Herrera Vol. III 2006,

utterly failed to even give a hint about what constituted the fraud and how it was perpetrated. Fraud cannot be presumed. MIRANDA vs. COURT OF APPEALS, 178 SCRA 702 – Failure to state a cause of action is a ground to discharge but nit when the answer or motion merely traverses the allegations of the complaint. The foregoing provision grants an aggrieved party relief from baseless and unjustifiable attachments procured, among others, upon false allegations, without having to file any cash deposit or counterbond. As the writ of attachment was improperly granted, it was only fitting that it be discharged by the trial court in rectification of its initial error. Hence, there was no need at all for the private respondent to post a counterbond. Finally, we also agree with the respondent court that the order lifting the attachment being merely interlocutory, it should not have been questioned on certiorari. This extraordinary remedy is available only when there is a clear showing of a grave abuse of discretion amounting to lack of jurisdiction, and there is no such showing here. ADLAWAN vs. TORRES, 233 SCRA 645 – Bare allegation that an encumbrance of a property is in fraud of the creditor does not suffice. Factual bases for such conclusion must be clearly averred. The execution of a mortgage in favor of another creditor is not conceived by the Rules as one of the means of fraudulently disposing of one's property. By mortgaging a piece of property, a debtor merely subjects it to a lien but ownership thereof is not parted with. Furthermore, the inability to pay one's creditors is not necessarily synonymous with fraudulent intent not to honor an obligation. Consequently, when petitioners filed a motion for the reconsiderations of the order directing the issuance of the writ of attachment, respondent Judge should have considered it as a motion for the discharge of the attachment and should have conducted a hearing or required submission of counter-affidavits from the petitioners, if only to gather facts in support of the allegation of fraud PEROXIDE PHILS. CORP. vs. CA, 199 SCRA 882 When the attachment is challenged for having been illegally or improperly issued, there must be a hearing with the burden of proof to sustain the writ being on the attaching creditor. That hearing embraces not only the right to present evidence but also a reasonable opportunity to know the claims of the opposing parties and meet them. The right to submit arguments implies that opportunity, otherwise the right would be a barren one. It means a fair and open hearing. And, as provided by the aforecited Section 13 of Rule 57, the attaching creditor should be allowed to oppose the application for the discharge of the attachment by counter-affidavit or other evidence, in addition to that on which the attachment was made.

PROVISIONAL REMEDIES 2010 San Beda Memory Aid, Atty. Geraldine Quimosing-Tiu Riano Reviewer, Syllabus

Section 14. Proceedings where property claimed by third person. – If the property attached is claimed by any person other than the party against whom attachment had been issued or his agent, and such person makes an affidavit of his title thereto, or right to the possession thereof, stating the grounds of such right or title, and serves such affidavit upon the sherif while the latter has possession of the attached party, and a copy thereof upon the attaching party, the sherif shall not be bound to keep the property under attachment, unless the attaching party or his agent, on demand of the sherif, shall file a bond approved by the court to indemnify the third-party claimant in a sum not less than the value of the property levied upon. In case of disagreement as to such value, the same shall be decided by the court issuing the writ of attachment. No claim for damages for the taking or keeping of the property may be enforced against the bond unless the action therefor is filed within one hundred twenty (120) days from the date of the filing of the bond. The sherif shall not be liable for damages for the taking or keeping of such property, to any such third-party claimant, if such bond shall be filed. Nothing herein contained such prevent such claimant or any third person from vindicating his claim to the property, or prevent the attaching party from claiming damages against a third-party claimant who filed a frivolous or plainly spurious claim, in the same or a separate action. When the writ of attachment is issued in favor of the Republic of the Philippines, or any officer duly representing it, the filing of such bond shall not be required, and in case the sherif is sued for damages as a result of the attachment, he shall be represented by the Solicitor General, and if held liable therefor, the actual damages adjudged by the court shall be paid by the National Treasurer out of the funds to be appropriated for the purpose. Remedy of the third person: 1. File a terceria or third party claim (similar to Sec. 16, Rule 39); 2. File independent action to recover his property; or 3. File a motion for intervention (This is available only before a judgment is rendered, hence, not allowed under Rule 39). Note: A third-party claim may be filed with the sheriff while he has possession of properties levied upon, this being the only time fixed for the purpose (Mangaoang vs. Provincial Sheriff of La Union, G.R. No. L-4869, May 26, 1952). Gene Geocaniga, Cherry Lynn Trinidad TAU MU Page 17 of 42

Sources: Herrera Vol. III 2006,

CASES: UY vs. COURT OF APPEALS, 191 SCRA 275 MANILA HERALD PUBLISHING vs. RAMOS, 88 PHIL. 94 TRADERS ROYAL BANK vs. IAC The main issue in this case is whether or not properties levied and seized by virtue of a writ of attachment and later by a writ of execution, were under custodia legis and therefore not subject to the jurisdiction of another co-equal court where a third party claimant claimed ownership of the same properties. The issue has long been laid to rest in the case of Manila Herald Publishing Co. Inc. v. Ramos where the Court filed that while it is true that property in custody of the law may not be interfered with, without the permission of the proper court, this rule is confined to cases where the property belongs to the defendant or one in which the defendant has proprietary interests. But when the Sherif, acting beyond the bounds of his office seizes a stranger's property, the rule does not apply and interference with his custody is not interference with another court's order of attachment. Under the circumstances, this Court categorically stated: It has been seen that a separate action by the third party who claims to be the owner of the property attached is appropriate. If this is so, it must be admitted that the judge trying such action may render judgment ordering the sheriff or whoever has in possession of the attached property to deliver it to the plaintiff claimant or desist from seizing it. It follows further that the court may make an interlocutory order, upon the filing of such bond as may be necessary, to release the property pending final adjudication of the title. Jurisdiction over an action includes jurisdiction on interlocutory matter incidental to the cause and deemed necessary to preserve the subject matter of the suit or protect the parties' interests. This is self-evident. The foregoing ruling was reiterated in the later case of Traders Royal Bank v. IAC. CHING vs. COURT OF APPEALS, 423 SCRA 356 – The sheriff may attach only those properties of the defendant against whom a writ of attachment has been issued by the court. When the sherif erroneously levies on attachment and seizes the property of a third person in which the said defendant holds no right or interest, the superior authority of the court which has authorized the execution may be invoked by the aggrieved third person in the same case. Upon application of the third person, the court shall order a summary hearing for the purpose of determining whether the sheriff has acted rightly or wrongly in the performance of his duties in the execution of the writ of attachment, more specifically if he has indeed levied on attachment and taken hold of property not belonging to the plaintiff. If so, the court may then order the sheriff to release the property from the erroneous levy and to return the same to the third person. In resolving the motion of the third party, the court does not and

PROVISIONAL REMEDIES 2010 San Beda Memory Aid, Atty. Geraldine Quimosing-Tiu Riano Reviewer, Syllabus

cannot pass upon the question of the title to the property with any character of finality. It can treat the matter only insofar as may be necessary to decide if the sheriff has acted correctly or not. If the claimant's proof does not persuade the court of the validity of the title, or right of possession thereto, the claim will be denied by the court. The aggrieved third party may also avail himself of the remedy of "terceria" by executing an affidavit of his title or right of possession over the property levied on attachment and serving the same to the office making the levy and the adverse party. Such party may also file an action to nullify the levy with damages resulting from the unlawful levy and seizure, which should be a totally separate and distinct action from the former case. The abovementioned remedies are cumulative and any one of them may be resorted to by one third-party claimant without availing of the other remedies. Section 15. Satisfaction of judgment out of property attached; return of sheriff. – If judgment be recovered by the attaching party and execution issue thereon, the sherif may cause the judgment to be satisfied out of the property attached, if it be sufficient for that purpose in the following manner: (a) By paying to the judgment obligee the proceeds of all sales of perishable or other property sold in pursuance of the order of the court, or so much as shall be necessary to satisfy the judgment; (b) If any balance remains due, by selling so much of the property, real or personal, as may be necessary to satisfy the balance, if enough for that purpose remain in the sherif's hands, or in those of the clerk of the court; (c) By collecting from all persons having in their possession credits belonging to the judgment obligor, or owing debts to the latter at the time of the attachment of such credits or debts, the amount of such credits and debts as determine by the court in the action, and stated in the judgment, and paying the proceeds of such collection over to the judgment obligee. The sherif shall forthwith make a return in writing to the court of his proceedings under this section and furnish the parties with copies thereof. How judgment is satisfied 1. Payment of proceeds of sale of perishable property; 2. Sale of property if there is a balance; 3. Collection of property of garnishee without need of prior permission to file action, but may be enforced in same action (Tayabas Land vs. Sharruf, 41 Phil. 382);

Gene Geocaniga, Cherry Lynn Trinidad TAU MU Page 18 of 42

Sources: Herrera Vol. III 2006,

4. Return must be made within 10 days from receipt of writ (Bilag-Rivera vs. Lora, July 6, 1995). PNB vs. VASQUEZ, 71 PHIL. 433 – Personal property may have been levied upon under attachment and left in the possession of the sheriff or other officer levying the writ to secure the payment of such judgment as may be recovered in the action. Where execution issues, it is the duty of such officer to apply towards its satisfaction the property so attached which are left in his hands; but he may have embezzled or otherwise misappropriated it, or allowed it to be lost by his negligence. In such case, it must, as between the plaintiff and defendant, and persons claiming under defendant, be treated as though it had been levied upon under execution as well as under attachment, and therefore as satisfying the judgment to the extent of its value. PAL vs. CA, 181 SCRA 557 – In the absence of an agreement, either express or implied, payment means the discharge of a debt or obligation in money and unless the parties so agree, a debtor has no rights, except at his own peril, to substitute something in lieu of cash as medium of payment of his debt. Consequently, unless authorized to do so by law or by consent of the obligee, a public officer has no authority to accept anything other than money in payment of an obligation under a judgment being executed. Strictly speaking, the acceptance by the sheriff of PAL's checks does not, per se, operate as a discharge of the judgment debt. Since a negotiable instrument is only a substitute for money and not money, the delivery of such an instrument does not, by itself, operate as payment. A check, whether a manager's check or ordinary check, is not legal tender, and an offer of a check in payment of a debt is not a valid tender of payment and may be refused receipt by the obligee or creditor. Mere delivery of checks does not discharge the obligation under a judgment. The obligation is not extinguished and remains suspended until the payment by commercial document is actually realized. Section 16. Balance due collected upon an execution; excess delivered to judgment obligor. – After realizing upon all the property attached, including the proceed of any debts or credits collected, and applying the proceeds to the satisfaction of the judgment, less the expenses of proceedings upon the judgment, any balance shall remain due, the sherif must proceed to collect such balance as upon ordinary execution. Whenever the judgment shall have been paid, the sherif, upon reasonable demand, must return to the judgment obligor the attached property remaining in his hands, and any proceeds of the sale of the property attached not applied to the judgment.

PROVISIONAL REMEDIES 2010 San Beda Memory Aid, Atty. Geraldine Quimosing-Tiu Riano Reviewer, Syllabus

Section 17. Recovery upon the counterbond. – When the judgment has become executory, the surety or sureties on any counter-bond given pursuant to the provisions of this Rule to secure the payment of the judgment shall become charged on such counter-bond and bound to pay the judgment obligee upon demand the amount due under the judgment, which amount may be recovered from such surety or sureties after notice and summary hearing in the same action. Where the writ of execution is returned unsatisfied, the liability of the counter-bond automatically attaches without the need for the plaintiff to file a supplemental pleading to claim payment from the surety (Vanguard Assurance Corp. vs. CA, G.R. No. L-25291, May 27, 1975) Requisites for recovery upon counterbond 1. The creditor demands upon the surety for satisfaction of the judgment; 2. The surety be given notice and a summary hearing in the same action as to his liability for judgment under the counterbond (Imperial Assurance vs. de los Angeles, 111 SCRA 25); a. The bondsmen are not liable on the bond when the obligation assumed is premised upon the issuance of a writ of attachment by a court which was not actually issued (Vadil vs. de Venecia, 9 SCRA 374). b. The motion by the surety to quash the writ of execution is sufficient notice (Dizon vs. Valdez 23 SCRA 200). c. After demand, the amount may be recovered from the surety in the same action. There is no need for a separate action. d. The rule of exclusion cannot be invoked by a bondsman of a counterbond against an attachment writ where there is already a final an executory judgment sentencing the bondsman as solidarily liable pro indiviso (Pioneer Insurance vs. Camilon, 116 SCRA 190). e. The bond answers for the judgment even if not expressly stipulated. The law under which this bond is issued shall be considered as part of the bond. LUZON STEEL vs. SIA, 28 SCRA 58 – The counterbond contemplated in the rule is evidently an ordinary guaranty where the sureties assume a subsidiary liability. This is not the case here, because the surety in the present case bound itself "jointly and severally" (in solidum) with the defendant; and it is prescribed in Article 2059, paragraph 2, of the Civil Code of the Philippines that excusion (previous exhaustion of the property of the debtor) shall not take place "if he (the guarantor) has bound himself solidarily with the debtor". The rule heretofore quoted cannot be Gene Geocaniga, Cherry Lynn Trinidad TAU MU Page 19 of 42

Sources: Herrera Vol. III 2006,

construed as requiring that an execution against the debtor be first returned unsatisfied even if the bond were a solidary one; for a procedural rule may not amend the substantive law expressed in the Civil Code, and further would nullify the express stipulation of the parties that the surety's obligation should be solidary with that of the defendant. The counterbond answers for any judgment and this includes judgment pending appeal (Phil. British Assurance vs. IAC, 150 SCRA 520). Section 18. Disposition of money deposited. – Where the party against whom attachment had been issued has deposited money instead of giving counter-bond, it shall be applied under the direction of the court to the satisfaction of any judgment rendered in favor of the attaching party, and after satisfying the judgment the balance shall be rendered to the depositor or his assignee. If the judgment is in favor of the party against whom attachment was issued, the whole sum deposited must be refunded to him or his assignee. Section 19. Disposition of attached property where judgment is for party against whom attachment was issued. – If judgment be rendered against the attaching party, all the proceeds of sales and money collected or received by the sherif, under the order of attachment, and all property attached remaining in any such officer's hands, shall be delivered to the party against whom attachment was issued, and the order of attachment discharged. Section 20. Claim for damages on account of improper, irregular or excessive attachment. – An application for damages on account of improper, irregular or excessive attachment must be filed before the trial or before the trial or before appeal is perfected or before the judgment becomes executory, with due notice to the attaching party and his surety or sureties, setting forth the facts showing his right to damages and the amount thereof. Such damages may be awarded only after proper hearing and shall be included in the judgment on the main case. If the judgment of the appellate court be favorable to the party against whom the attachment was issued, he must claim damages sustained during the pendency of the appeal by filing an application in the appellate court, with notice to the party in whose favor the attachment was issued or his surety or sureties, before the judgment of the appellate court becomes executory. The appellate court may allow the

PROVISIONAL REMEDIES 2010 San Beda Memory Aid, Atty. Geraldine Quimosing-Tiu Riano Reviewer, Syllabus

application to be heard and decided by the trial court. Nothing herein contained shall prevent the party against whom the attachment was issued from recovering in the same action the damages awarded to him from any property of the attaching party not exempt from execution should the bond or deposit given by the latter be insufficient or fail to fully satisfy the award. When must application for damages be filed: Before the trial or before appeal is perfected, or before the judgment becomes executory. It shall be awarded after hearing and included in the judgment. If the judgment of the appellate court be favorable to the party against whom the attachment was issued, he must claim damages during the pendency of the appeal. Procedure for claiming damages outlined in Sec. 20 is EXCLUSIVE. Hence, such claims for damages cannot be the subject of an independent action. Exception: 1. Where the principal case was dismissed for lack of jurisdiction by the trial court without giving an opportunity to the party whose property was attached to apply for and prove his claim; and 2. Where the damages by reason of the attachment was sustained by a third person who was not a party to the action wherein such writ was issued. Note: Any award of damages for the wrongful issuance of a provisional remedy should be recovered in the SAME CASE. The recovery of damages cannot be had in a separate action. Requisites to claim for damages upon the bond 1. There must be an application before the trial court either by motion or counterclaim with notice to surety who must be given opportunity to present such defenses as he may have with the principal and to crossexamine witnesses if he so desires. 2. A judgment for defendant is tantamount to a declaration that plaintiff has no cause of action and, therefore not entitled to attachment. The phrase “not entitled thereto” means no cause of action, no fraud, or has other security (Calderon vs. IAC, 155 SCRA 531). 3. Damages must be awarded before judgment becomes final. 4. Claims for damages against the bond must be filed in the same action which issued the writ of attachment (Pioneer Insurance vs. Hontanosas, 78 SCRA 447). Otherwise it is barred (Stronghold Insurance vs. CA, Nov. 6 1989). Gene Geocaniga, Cherry Lynn Trinidad TAU MU Page 20 of 42

Sources: Herrera Vol. III 2006,

Exceptions to the rule that claim must be filed in the same case 1. Where the principal case was dismissed for lack of jurisdiction and no claim for damages could have been presented in the said case (Santos vs. CA, 95 Phil. 360); 2. A separate case for damages resulting from the attachment may be consolidated if it is still pending. Where the issuing court rules that the questioned attachment was proper, res judicata bars complaint. A separate action for damages based on malicious prosecution may however be filed but this right depends upon the law governing malicious prosecutions (Aquino vs. Socorro, 35 SCRA 373). 3. Where a writ of attachment was declared illegal, the defendant against whom it was issued may file his claim for damages in the Court of Appeals before the latter decides the appeal on the merits. The CA must hear the motion and not dismiss the appeal for not filing appellant’s brief whose deferment was requested (Hanil Development Co. vs IAC, 144 SCRA 557). MALAYAN INSURANCE vs. SALAS, 90 SCRA 252 – Under section 20 of Rule 57, application for damages against the surety resulting from wrongful attachment or wrongful seizure of personal property must be filed in the Court of First Instance in the same action in which the Writ of Attachment or the writ or replevin was issued, before trial, or even after trial but before the judgment becomes executory or before perfection of the appeal. In other words, the court must still have jurisdiction over the case. The attaching creditor and his surety or sureties must be notified of the application setting forth the facts showing the right of the applicant to and the amount of damages sustained by him. If the appeal is taken, then the application must be filed in the Appellate Court but always before the judgment of said court becomes final and executory. That where such application is seasonably made to the Appellate Court, the latter must either proceed to hear and decide the application or refer the application to the trial court and allow it to hear and decide the same. Application for damages sustained during the proceeding of the appeal may similarly be filed with the Appellate Court, which may hear the application or refer it to the trial court for the said court to hear and decide, The hearing is summary and will be limited to such new defense not previously set up by the principal, as the surety may allege and offer to prove. While the previous testimony by the claimant on the damages may be reproduced, the surety should be given an opportunity to crossexamine the witness or witnesses, if it so desires. If the surety was not given notice when the claim for damages against the principal in the replevin (attachment) bond was heard, then as a matter of procedural due process the surety is entitled to be heard when the judgment for damages against

PROVISIONAL REMEDIES 2010 San Beda Memory Aid, Atty. Geraldine Quimosing-Tiu Riano Reviewer, Syllabus

the principal is sought to be enforced against the surety’s replevin (attachment) bond. MANINGO vs. IAC, 183 SCRA 691 – As may be gathered from Section 20, Rule 57, the claim for damages resulting from wrongful seizure of personalty property must be filed in the same action in which the writ attachment or the writ of replevin was issued; otherwise, it is bar' red. It may be presented, before trial in the answer by way of counterclaim/ In the discretion of the court, it may also be made at any other time even after the rendition of final judgment if the court has still jurisdiction over the case. Hence, if the application for damages is not made in compliance with the procedure laid down in the rules, even the surety on the bond is relieved from liability therefor. The remedy provided by law is exclusive and by failing to file a motion for the determination of the damages on time and while judment is still under the control of the court, the claimant loses his right to damages. In the case at bar, there is no showing that respondent had timely filed his claim for damages arising from the wrongful issuance of the writ of replevin, or prior to dismissal on December 15, 1982, of the replevin case, upon respondent’s petition for certiorari. It was only years later on June 11, 1984 that respondent’s applied for damages on the replevin bond, after the case had long been dismissed. The trial court no longer had jurisdiction and control over the case when it awarded damages after it was dismissed and thrown out of court in the certiorari case filed respondent’s himself. Thus, the judgment of the trial court awarding damages against the estate of Maningo in the replevin case is null and void. Logically, the petitioners' surety, Paramount Insurance Corporation, should be released from its liability under the bond. CALDERON vs. IAC, 155 SCRA 531 – The filing of a counterbond does not relieve applicant’s attachment bond’s liability for damages. Liability attaches if the plaintiff is not entitled to the attachment because the requirements entitling him to the writ are wanting, or if the plaintiff has no right to the attachment because the facts stated in the affidavit, or some of them are untrue. The final reckoning is when “the court shall finally adjudge that the attachment creditor was not entitled to the issuance of the attachment writ in the first place.” BA FINANCE CORP. vs. CA, 161 SCRA 608 – An attachment may be said to be wrongful when, for instance, the plaintiff has no cause of action, or that there is no true ground therefore, or that the plaintiff has a sufficient security other than the property attached, which is tantamout to saying that the plaintiff is not entitled to attachment because the requirements of entitling him to the writ are wanting. ZARAGOZA vs. FIDELINO, 163 SCRA 443 – A party against whom an attachment was issued may apply for damages under the rule, it is not Gene Geocaniga, Cherry Lynn Trinidad TAU MU Page 21 of 42

Sources: Herrera Vol. III 2006,

necessary that the judgment is favorable to him. Although a party is adjudged liable to another if it be established that the attachment issued at the latter’s instance was wrongful and the former had suffered injury thereby, recovery for damages may be had by the party thus prejudiced by the wrongful attachment, even if the judgment be adverse to him. PHILIPPINE CHARTER INSURANCE vs. CA, 179 SCRA 468 – The surety on an attachment bond assures that the applicant "will pay all the costs which may be adjudged to the adverse party and all damages which he may sustain by reason of the attachment, if the court shall finally adjudge that the applicant was not entitled thereto." In other words the surety, by submitting its attachment bond, binds itself solidarily to make the same payments which its — principal the party at whose instance the attachment issues — may be condemned to make, to compensate for the damages resulting from the wrongful attachment, although unlike its principal, its liability is limited to the amount stated in its bond. The final adjudication "that the applicant was not entitled" to the attachment, standing alone, does not suffice to make the surety liable. It is necessary, in addition, that the surety be accorded due process, i.e., that it be given an opportunity to be heard on the question of its solidarily liability for damages arising from wrongful attachment. This, by established rule and practice, is accorded to the surety at a summary hearing, scheduled after, judgment on presentation of an application to hold it answerable on its bond. Evidently, such a summary hearing is not rendered unnecessary or superfluous by the fact that the matter of damages was among the issues tried during the hearings on the merits, unless of course, the surety had previously been duly impleaded as a party, or otherwise earlier notified and given opportunity to be present and ventilate its side on the matter during the trial. The procedure for the rendition of a binding directive on the surety upon its solidarily liability for damages for wrongful attachment is indicated in Section 20, Rule 57 of the Rules of Court. ZENITH INSURANCE CORP vs. CA, 119 SCRA 485 – The liability of petitioner is expressly limited to P250,000.00, the amount of the attachment bond. A guaranty is not presumed, it must be express and cannot extend to more than what is stipulated therein. Liability on the bond is contractual in nature, and is ordinarily restricted to the obligation expressly assumed therein. Liability on an attachment bond is created by, and rests on, its stipulations. The obligor has a right to stand on the very terms of his contract, and his liability will not be extended beyond the fair import of the words used; his liability is one not to be extended by implication, and it will not be inferred that he agreed to do more than that which is fairly expressed in the bond.

PROVISIONAL REMEDIES 2010 San Beda Memory Aid, Atty. Geraldine Quimosing-Tiu Riano Reviewer, Syllabus

Measure of Damages 1. It is not the value of property attached but the extent of actual damages that is the measure of damages. 2. If the property levied upon remained in possession of defendant, depreciation, deterioration or damage must be borne by him and cannot be charged to the plaintiff. 3. Attorney’s fees for service rendered in securing the release of property cannot be allowed. 4. Surety is not answerable for all costs and damages adjudged against its principal in excess of that adjudged in the decision. 5. Even iyhf in good faith liability for damages is there. If there is bad faith moral damages may be awarded. 6. In order that moral damages may be recovered in connection with the writ of attachment under consideration, malice is an essential ingredient thereof (Lazatin vs. Twaño, 2 SCRA 842). However, malice or lack of good faith is not an element of recovery on the bond. 7. The damages – against the bond includes exemplary damages and attorney’s fees. Note: Damages larger than the amount of the bond may be awarded (Section 20, last par). MC ENGINEERING vs. CA, 380 SCRA 116 – Actual or compensatory damages may be recovered for wrongful, though no malicious, attachment. The mere fact that a complaint is dismissed for lack of legal basis will not justify an award of moral damages to the prevailing party. Even the dismissal of a "clearly unfounded civil action or proceeding" will not entitle the winning party to moral damages. For moral damages to be awarded, the case must fall within the instances enumerated in Article 2219, or under Article 2220, of the Civil Code. Moreover, in the absence of fraud, malice, wanton recklessness or oppressiveness, exemplary damages cannot be awarded. DM WENCESLAO vs. READYCON TRADING, 433 SCRA 251 – Where the plaintiff is entitled to a writ of preliminary attachment as a provisional remedy by which the property of the defendant is taken into custody of the law as a security for the satisfaction of any judgment which the plaintiff may recover. The latter will pay all the costs which may be adjudged to the adverse party and all damages which he may sustain by reason of the attachment, but the court did adjudge that the applicant was not entitled thereto the adverse party must bear its own damages as a result thereof. SPOUSES YU vs. NGO YET TE, FEB. 6, 2007 – To merit an award of actual damages arising from a wrongful attachment, the attachment defendant must prove, with the best evidence obtainable, the fact of loss or injury suffered and the amount thereof. Such loss or injury must be of the kind which is not only capable of proof but must Gene Geocaniga, Cherry Lynn Trinidad TAU MU Page 22 of 42

Sources: Herrera Vol. III 2006,

actually be proved with a reasonable degree of certainty. As to its amount, the same must be measurable based on specific facts, and not on guesswork or speculation. In particular, if the claim for actual damages covers unrealized profits, the amount of unrealized profits must be established and supported by independent evidence of the mean income of the business undertaking interrupted by the illegal seizure. CARLOS vs. SANDOVAL, 471 SCRA 266 – Section 20 of Rule 57 requires that there be a “proper hearing” before the application for damages on the attachment bond may be granted. The hearing requirement ties with the indispensable demand of procedural due process. Due notice to the adverse party and its surety setting forth the facts supporting the applicant's right to damages and the amount thereof under the bond is essential. No judgment for damages may be entered and executed against the surety without giving it an opportunity to be heard as to the reality or reasonableness of the damages resulting from the wrongful issuance of the writ. Under the rule, it was neither mandatory nor fatal that there should be a separate hearing in order that damages upon the bond can be claimed, ascertained and awarded. What is necessary only is for the attaching party and his surety or sureties to be duly notified and given the opportunity to be heard. RULE 58 PRELIMINARY INJUNCTION Section 1. Preliminary injunction defined; classes. – A preliminary injunction is an order granted at any stage of an action or proceeding prior to the judgment or final order, requiring a party or a court, agency or a person to refrain from a particular act or acts. It may also require the performance of a particular act or acts, in which case it shall be known as a preliminary mandatory injunction. Injunction is a judicial writ, process or proceeding whereby a party is ordered to do or refrain from doing a particular act. Preliminary Injunction (IP) is an order granted at any stage of an action or proceeding prior to the judgment requiring a party or a court, agency or a person to refrain from a particular act or acts. Purpose: To preserve the status quo or to prevent future wrongs during the pendency of the main action. Preliminary Mandatory Injunction (PMI) is an order requiring the performance of a particular act or acts. PROHIBITORY Purpose is to prevent a

MANDATORY Purpose is to require a

PROVISIONAL REMEDIES 2010 San Beda Memory Aid, Atty. Geraldine Quimosing-Tiu Riano Reviewer, Syllabus

person from the performance of a particular act. The act had not yet been performed Status quo is preserved

person to perform particular act.

Sources: Herrera Vol. III 2006,

a

The act has already been performed and this act has violated the rights of another Status quo is restored

Requisites: (IRU) 1. Invasion of the right is material and substantial; 2. Right of the complainant is clear and unmistakable; and 3. Urgent and paramount necessity for the writ to prevent serious damages. General Rule: It will not issue against acts already consummated. Exception: If the acts complained of are continuing in nature and were in derogation of plaintiff’s rights at the outset. Where writ is not available: 1. Foreclosure of a mortgage by a government bank (PD 385); 2. Commencement and performance of infrastructure projects by the government (RA 8795); and 3. Concessions, licenses, permits, patents or public grants as to the disposition, exploitation, utilization, exploration and/or development of natural resources (PD 605). INJUNCTION Directed against party in the action

a

It does not involve jurisdiction of the court

It may be the main action itself or just a provisional remedy INJUNCTION May exceed 20 days Restrains or requires the performance of particular acts

PROHIBITION Directed against a court, tribunal or a person exercising judicial, quasi-judicial or ministerial functions Based on the ground that the court against whom the writ is sought had acted within or in excess of jurisdiction Always the main action

TRO Does not exceed 20 days Maintain status quo

TRO Summary hearing Prevents the doing of an act Requires the posting of a bond

STATUS QUO ORDER Issued motu proprio Doing or undoing of certain acts Does not require a bond

DOH vs. PHIL. PHARMAWEALTH, MARCH 13, 2007 – As regards petitioner DOH, the defense of immunity from suit will not avail despite its being an unincorporated agency of the government, for the only causes of action directed against it are preliminary injunction and mandamus. Under Section 1, Rule 58 of the Rules of Court, preliminary injunction may be directed against a party or a court, agency or a person. Moreover, the defense of state immunity from suit does not apply in causes of action which do not seek to impose a charge or financial liability against the State. LEVI STRAUSS vs. CLINTON APPARELLE, SEPT. 20, 2005 – An extraordinary remedy, injunction is designed to preserve or maintain the status quo of things and is generally availed of to prevent actual or threatened acts until the merits of the case can be heard. It may be resorted to only by a litigant for the preservation or protection of his rights or interests and for no other purpose during the pendency of the principal action. It is resorted to only when there is a pressing necessity to avoid injurious consequences, which cannot be remedied under any standard compensation. The resolution of an application for a writ of preliminary injunction rests upon the existence of an emergency or of a special recourse before the main case can be heard in due course of proceedings. Section 2. Who may grant preliminary injunction. – A preliminary injunction may be granted by the court where the action or proceeding is pending. If the action or proceeding is pending in the Court of Appeals or in the Supreme Court, it may be issued by said court or any member thereof. Who may grant: 1. Supreme Court in its original and appellate jurisdiction; 2. Court of Appeals whether or not in aid of its appellate jurisdiction; 3. Trial Court in cases pending before it within its territorial jurisdiction; 4. Sandiganbayan; and 5. Court of Tax Appeals.

Status Quo: means the last, actual, peaceable and uncontested state of things which preceded the controversy.

Note: If the main action is one for injunction, an inferior court cannot grant the preliminary injunction.

Status Quo Order: is resorted to when the projected proceedings in the case made the conservation of the status quo desirable or essential but the affected party neither sought such relief nor did the allegations in his pleading sufficiently make out a case for a TRO.

Ratio: An action for injunction is one incapable of pecuniary estimation, hence, cognizable by the RTC.

Gene Geocaniga, Cherry Lynn Trinidad TAU MU Page 23 of 42

Limitations as to Power of RTC to issue Writ of Preliminary Injunction

PROVISIONAL REMEDIES 2010 San Beda Memory Aid, Atty. Geraldine Quimosing-Tiu Riano Reviewer, Syllabus

1. It could restrain acts being or about to be committed within its territorial jurisdiction only; 2. It could not issue said writ in unfair labor practices; 3. It could not issue said writ against the Securities and Exchange Commission (SEC), Bureau of Patents, Trademarks and Technology Transfer, or the COMELEC; and 4. It could not interfere by injunction with the judgment of a court of concurrent or coordinate jurisdiction. DOCTRINE OF NON-JURISDICTION GOMOS vs .ADIONG, OCT. 22, 2004 – As the presiding judge of RTC, Marawi City, he should have known that Makati City was way beyond the boundaries of his territorial jurisdiction insofar as enforcing a writ of preliminary injunction is concerned. Section 21(1) of B.P. Blg. 129, as amended, provides that the RTC shall exercise original jurisdiction in the issuance of writs of certiorari, prohibition, mandamus, quo warranto, habeas corpus and injunction which may be enforced in any part of their respective regions. The rationale is “that the trial court has no jurisdiction to issue a writ of preliminary injunction to enjoin acts being performed or about to be performed outside its territorial jurisdiction.” DELA PAZ vs. ADIONG, NOV. 23, 2004 – Regional Trial Courts can only enforce their writs of injunction within their respective designated territories. Generally, an injunction under Section 21 of the Batas Pambansa Bilang 129 is enforceable within the region. The reason is that the trial court has no jurisdiction to issue a writ of preliminary injunction to enjoin acts being performed or about to be performed outside its territorial boundaries. MANGAHAS vs. PAREDES, FEB. 14, 2007 – The issue involving the binding effect of the injunction issued by the Quezon City RTC became the law of the case between the parties. Under this legal principle, whatever is irrevocably established as the controlling legal rule or decision between the parties in the same case continues to be the law of the case, so long as the facts on which the decision was predicated continue. Stated otherwise, the doctrine holds that once an appellate court has declared the law in a case that declaration continues to hold even in subsequent appeal. The reason lies in the fact that public policy dictates that litigations must be terminated at some definite time and that the prevailing party should not be denied the fruits of his victory by some subterfuge devised by the losing party. EXCEPTIONS DECANO vs. EDU, 99 SCRA 410 – Respondents make capital of the fact that the petition for mandamus with injunction was filed in the Court of First Instance of Pangasinan while respondent Edu holds office in Quezon City which, they claim, is beyond the territorial jurisdiction of the said Gene Geocaniga, Cherry Lynn Trinidad TAU MU Page 24 of 42

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court. Respondents cite the long line of cases from the 1960 case of Acosta vs. Alvendia where this Court, pursuant to sec. 44 (h) of the Judiciary Act, jointly or alternatively with sec. 4, Rule 65 of the Rules of Court and/or section 2 of Rule 58, ruled that a court of first instance has no jurisdiction to require or control the execution of an act committed beyond the limits of its territorial jurisdiction. These cases invariably involved petitions for writs of injunction seeking to control the actions of courts or officers outside the territorial jurisdiction of the respondent courts of first instance where said petitions had been filed. The Acosta ruling of non-jurisdiction does not apply, however, to the facts and circumstances at bar. Here, petitioner seeks primarily the annulment of the dismissal order issued by respondent Edu, mandamus and injunction being then merely coronary remedies to the main relief sought, and what is prayed to be enjoined, as in fact the trial court did enjoin by preliminary injunction, is the implementation of the termination order against the petitioner. It is true that the order of dismissal was issued by respondent Edu, but it was to be implemented in Dagupan City by his subordinate officer, respondent Acting Registrar of the LTC stationed at Dagupan City. Insofar, therefore, as respondent Edu is concerned, the order terminating the services of respondent was a fait accompli and this he had done without authority, as earlier discussed. The injunction is question, consequently, must be taken only to restrain the implementation of respondent Edu's order by his co-respondent whose official station at Dagupan City is within the territorial boundaries of the trial court's jurisdictional district. DAGUPAN ELECTRIC CO. vs. PAÑO, 95 SCRA 693 – The petitioners contend that the Court of First Instance of Rizal at Quezon City has no jurisdiction over the case because the act of disconnecting the power to the hotel of the MC Adore Finance and Investment, Inc. took place in Dagupan City, outside the Province of Rizal and Quezon City. The respondents submit that the act of disconnection was the result of an order issued by the Dagupan Electric Corporation from its business office in Quezon City. The Court of First Instance of Rizal at Quezon City has jurisdiction over the case. The Dagupan Electric Corporation has its principal office in Quezon City where the business of the corporation is managed by the Board of Directors. Decisions of the said corporation are made in Quezon City. The employees of the Dagupan Electric Corporation in Dagupan City merely carry out the orders issued by the officials of said corporation in Quezon City. Hence the acts sought to be restrained are being committed in Quezon City. ALLGEMEINE-BAU-CHEMIE PHILS. vs. METROBANK, FEB 10, 2006 – An original action for injunction is outside the jurisdiction of the Court of Appeals, however. Under B.P. 129, the appellate court has original jurisdiction only over

PROVISIONAL REMEDIES 2010 San Beda Memory Aid, Atty. Geraldine Quimosing-Tiu Riano Reviewer, Syllabus

actions for annulment of judgments of the RTCs and has original jurisdiction to issue writs of mandamus, prohibition, certiorari, habeas corpus and quo warranto, and auxiliary writs or processes whether or not they are in aid of its appellate jurisdiction. The appellate court’s jurisdiction to grant a writ of preliminary injunction is limited to actions or proceedings pending before it, as Section 2 of Rule 58 of the Rules clearly provides or in a petition for certiorari, prohibition or mandamus under Section 7 of Rule 65 CIVIL SERVICE COMMISSION vs. CA, NOV. 17, 2005 – Having appellate jurisdiction over decisions of the CSC, the CA clearly has the discretion to issue an ancillary writ of preliminary injunction to secure the rights of private respondent pending appeal of his dismissal. Absent a clear showing of grave abuse of discretion, the exercise of judgment by the courts in injunctive matters should not be interfered with. CITY GOVERNMENT OF BAGUIO vs. MASWENG, FEB. 4, 2009 – The NCIP may issue temporary restraining orders and writs of injunction without any prohibition against the issuance of the writ when the main action is for injunction. The power to issue temporary restraining orders or writs of injunction allows parties to a dispute over which the NCIP has jurisdiction to seek relief against any action which may cause them grave or irreparable damage or injury. In this case, the Regional Hearing Officer issued the injunctive writ because its jurisdiction was called upon to protect and preserve the rights of private respondents who are undoubtedly members of ICCs/IPs. REYES vs. DEMETRIA, JAN. 14, 2003 – While any member of the Court of Appeals may issue preliminary injunction or TRO, this power is exercised only in case of extreme urgency and in the tradition of the Supreme Court, the Court en banc or division ratifies or confirm the act of the single justice at the very next session of the Court. 2002 INTERNAL RULES OF THE COURT OF APPEALS Rule IV, Section 2. Action by the Presiding Justice – When a petition involves an urgent matter, such as an application for writ of habeas corpus or temporary restraining order, and there is no way of convening the Raffle Committee or calling any of its members, the Presiding Justice or the Executive Justice, as the case may be or in their absence, the most senior Justice present may conduct the raffle or act on the petition, subject to the raffle on the next working day in accordance with Rule III hereof(n). Rule VI, Section 5. Action by a Justice. - All members of the Division shall act upon an application for a temporary restraining order and writ of preliminary injunction. However, if the matter is of extreme urgency, and a Justice is absent, the two other justices shall act upon the Gene Geocaniga, Cherry Lynn Trinidad TAU MU Page 25 of 42

Sources: Herrera Vol. III 2006,

application. If only the ponente is present, then he shall act alone upon the application. The action of the two Justices or of the ponente shall however be submitted on the next working day to the absent member or members of the Division for ratification, modification or recall. Section 3. Grounds for issuance of preliminary injunction. – A preliminary injunction may be granted when it is established: (a) That the applicant is entitled to the relief demanded, and the whole or part of such relief consists in restraining the commission or continuance of the act or acts complained of, or in requiring the performance of an act or acts, either for a limited period or perpetually; (b) That the commission, continuance or non-performance of the act or acts complained of during the litigation would probably work injustice to the applicant; or (c) That a party, court, agency or a person is doing, threatening, or is attempting to do, or is procuring or sufering to be done, some act or acts probably in violation of the rights of the applicant respecting the subject of the action or proceeding, and tending to render the judgment inefectual. Grounds for issuance of Preliminary Injunction: (EnCoD) 1. Applicant is Entitled to the relief demanded; or 2. Commission, continuance or non-performance of the act complained of would work injustice to the applicant; or 3. Party, court, agency or a person is Doing, threatening, or is attempting to do, or is procuring or suffering to be done, some act or acts probably in violation of the rights of the applicant respecting the subject of the action or proceeding. WHEN INJUNCTION NOT PROPER MANILA INT’L AIRPORT vs. CA, FEB. 14, 2003 – The requisites necessary for the issuance of a writ of preliminary injunction are: (1) the existence of a clear and unmistakable right that must be protected; and (2) an urgent and paramount necessity for the writ to prevent serious damage. The duty of the court taking cognizance of a prayer for a writ of preliminary injunction is to determine whether the requisites necessary for the grant of an injunction are present in the case before it. In the instant case, however, the trial court’s order was, on its face, bereft of basis for the issuance of a writ of preliminary injunction. There were no findings of fact or law in the assailed order indicating that any of the elements essential for the grant of a preliminary injunction existed. The trial court alluded to hearings during which the parties marked their respective exhibits and the trial court heard the oral arguments of

PROVISIONAL REMEDIES 2010 San Beda Memory Aid, Atty. Geraldine Quimosing-Tiu Riano Reviewer, Syllabus

opposing counsels. However, it cannot be ascertained what evidence was formally offered and presented by the parties and given weight and credence by the trial court. The basis for the trial court’s conclusion that K Services was entitled to a writ of preliminary injunction is unclear. BANGUS FRY FISHERFOLK vs. LANZANAS, JULY 10, 2003 – The jurisdiction of Regional Trial Courts to issue injunctive writs is limited to acts committed or about to be committed within their judicial region. Moreover, Presidential Decree No. 1818 (“PD No. 1818”) prohibited courts from issuing injunctive writs against government infrastructure projects like the mooring facility in the present case. Republic Act No. 8975 (“RA No. 8975”), which took effect on 26 November 2000, superseded PD No. 1818 and delineates more clearly the coverage of the prohibition, reserves the power to issue such writs exclusively with this Court, and provides penalties for its violation. Obviously, neither the Manila RTC nor the Oriental Mindoro RTC can issue an injunctive writ to stop the construction of the mooring facility. Only this Court can do so under PD No. 1818 and later under RA No. 8975. Thus, the question of whether the Manila RTC has jurisdiction over the complaint considering that its injunctive writ is not enforceable in Oriental Mindoro is academic. Clearly, the Manila RTC has jurisdiction to determine the validity of the issuance of the ECC, although it could not issue an injunctive writ against the DENR or NAPOCOR. However, since the construction of the mooring facility could not proceed without a valid ECC, the validity of the ECC remains the determinative issue in resolving petitioners’ complaint. Section 1 of PD No. 1818 provides as follows: “No court in the Philippines shall have jurisdiction to issue any restraining order, preliminary injunction, or preliminary mandatory injunction in any case, dispute, or controversy involving an infrastructure project, or a mining, fishery, forest or other natural resource development project of the government, or any public utility operated by the government, including among others public utilities for the transport of the goods or commodities, stevedoring and arrastre contracts, to prohibit any person or persons, entity or governmental official from proceeding with, or continuing the execution or implementation of any such project, or the operation of such public utility, or pursuing any lawful activity necessary for such execution, implementation or operation.” Section 3 of RA No. 8975 prohibits courts, except the Supreme Court, from issuing temporary restraining orders, preliminary injunctions, or preliminary mandatory injunctions against the government, its agencies, or any person or entity whether public or private, involving national government projects, defined in Section 2 of the law as follows: Gene Geocaniga, Cherry Lynn Trinidad TAU MU Page 26 of 42

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“‘National government projects’ shall refer to all current and future national government infrastructure, engineering works and service contracts, including projects undertaken by governmentowned and controlled corporations, all projects covered by Republic Act No. 6957, as amended by Republic Act No. 7718, otherwise known as the Build-Operateand-Transfer Law, and other related and necessary activities such as site acquisition, supply and/or installation of equipment and materials, implementation, construction, completion, operation, maintenance, improvement, repair and rehabilitation, regardless of the source of funding.” FAR EAST BANK vs. CA, APRIL 1, 1996 – The issue whether or not injunction in favor of the petitioner should issue hinges on the important question: Whether the disputed fixed assets were collateralized with the Central Bank? In this case, the trial court, as affirmed by the respondent Court of Appeals, found that the subject fixed assets were indeed submitted as collaterals with the Central Bank, and therefore were among the items not covered by the Purchase Agreement signed by the parties pursuant to the Memorandum of Agreement. Hence, the inescapable conclusion is that petitioner never acquired ownership over these properties. BAYANIHAN MUSIC vs. BMG RECORDS, MAR 7, 2005 – There is manifest abuse of discretion in the issuance of an injunctive writ if the following requisites provided for by law are not present: (1) there must be a right in esse or the existence of a right to be protected; and (2) the act against which the injunction is to be directed is a violation of such right. Of course, while a clear showing of the right to an injunctive writ is necessary albeit its existence need not be conclusively established, as the evidence required therefor need not be conclusive or complete, still, for an applicant, like petitioner Bayanihan, to be entitled to the writ, he is required to show that he has the ostensible right to the final relief prayed for in its complaint. Here, the trial court did not find ample justifications for the issuance of the writ prayed for by petitioner. LEVI STRAUSS vs. CLINTON APPARELLE, SEPT. 20, 2005 – We find that petitioners’ right to injunctive relief has not been clearly and unmistakably demonstrated. The right has yet to be determined. Petitioners also failed to show proof that there is material and substantial invasion of their right to warrant the issuance of an injunctive writ. Neither were petitioners able to show any urgent and permanent necessity for the writ to prevent serious damage. They assert that a trademark owner does not have to wait until the mark loses its distinctiveness to obtain injunctive relief, and that

PROVISIONAL REMEDIES 2010 San Beda Memory Aid, Atty. Geraldine Quimosing-Tiu Riano Reviewer, Syllabus

the mere use by an infringer of a registered mark is already actionable even if he has not yet profited thereby or has damaged the trademark owner. To be eligible for protection from dilution, there has to be a finding that: (1) the trademark sought to be protected is famous and distinctive; (2) the use by respondent of “Paddocks and Design” began after the petitioners’ mark became famous; and (3) such subsequent use defames petitioners’ mark. In the case at bar, petitioners have yet to establish whether “Dockers and Design” has acquired a strong degree of distinctiveness and whether the other two elements are present for their cause to fall within the ambit of the invoked protection. The Trends MBL Survey Report which petitioners presented in a bid to establish that there was confusing similarity between two marks is not sufficient proof of any dilution that the trial court must enjoin. ELIDAD C. KHO vs. CA, MAR. 19, 2002 – Petitioner has no right to support her claim for the exclusive use of the subject trade name and its container. The name and container of a beauty cream product are proper subjects of a trademark inasmuch as the same falls squarely within its definition. In order to be entitled to exclusively use the same in the sale of the beauty cream product, the user must sufficiently prove that she registered or used it before anybody else did. The petitioner’s copyright and patent registration of the name and container would not guarantee her the right to the exclusive use of the same for the reason that they are not appropriate subjects of the said intellectual rights. Consequently, a preliminary injunction order cannot be issued for the reason that the petitioner has not proven that she has a clear right over the said name and container to the exclusion of others, not having proven that she has registered a trademark thereto or used the same before anyone did. WHEN INJUNCTION PROPER UNILEVER PHILS. vs. CA, AUG. 10, 2006 – Injunction is resorted to only when there is a pressing necessity to avoid injurious consequences which cannot be remedied under any standard compensation. As correctly ruled by the CA, there was an extreme urgency to grant the preliminary injunction prayed for by P&GP considering that TV commercials are aired for a limited period of time only. In fact, this Court takes note of the fact that the TV commercial in issue ― the Kite TV advertisement ― is no longer aired today, more than 10 years after the injunction was granted on September 16, 1994. TALENTO vs. ESCALADA, JR., JUNE 27, 2008 – The requisites for the issuance of a writ of preliminary injunction are: (1) the existence of a clear and unmistakable right that must be protected; and (2) an urgent and paramount necessity for the writ to prevent serious damage. The urgency and paramount necessity for the issuance of a writ of injunction becomes relevant in the instant case considering that what is being Gene Geocaniga, Cherry Lynn Trinidad TAU MU Page 27 of 42

Sources: Herrera Vol. III 2006,

enjoined is the sale by public auction of the properties of Petron amounting to at least P1.7 billion and which properties are vital to its business operations. If at all, the repercussions and far-reaching implications of the sale of these properties on the operations of Petron merit the issuance of a writ of preliminary injunction in its favor. CIVIL SERVICE COMMISSION vs. CA, NOV. 17, 2005 – The assailed Order does not state the basis for the issuance of a writ of preliminary injunction. The CA made no findings of fact or law indicating that any of the elements essential for the grant of an injunctive writ existed. After merely stating that it took “into consideration the allegations and the arguments set forth” in the Urgent Motion filed by Gannapao, the CA immediately concluded afterwards that respondent was entitled to the relief demanded. Nevertheless, in the interest of justice and fair play, this Court scrutinized the records of the case and, indeed, found sufficient grounds for the grant of the injunctive Writ. Prior to the finality of the CSC Decision dismissing him, private respondent has a clear and unmistakable right to his current position in the police service. Unquestionably, the right to employment, oftentimes the lowly employee’s only noble source of bread and butter, is entitled to protection by the State. Moreover, the immediate implementation of the not yet final penalty of dismissal from the service would surely cause private respondent (and his family) irreparable damage. As pleaded in his Urgent Motion for Issuance of Temporary Restraining Order and/or Preliminary Injunction, his salary and benefits as a policeman are his family’s only source of income. Section 4. Verified application and bond for preliminary injunction or temporary restraining order. – A preliminary injunction or temporary restraining order may be granted only when: (a) The application in the action or proceeding is verified, and shows facts entitling the applicant to the relief demanded; and (b) Unless exempted by the court, the applicant files with the court where the action or proceeding is pending, a bond executed to the party or person enjoined, in an amount to be fixed by the court, to the efect that the applicant will pay to such party or person all damages which he may sustain by reason of the injunction or temporary restraining order if the court should finally decide that the applicant was not entitled thereto. Upon approval of the requisite bond, a writ of preliminary injunction shall be issued. (c) When an application for a writ of preliminary injunction or a temporary restraining order is included in a complaint or any initiatory pleading, the

PROVISIONAL REMEDIES 2010 San Beda Memory Aid, Atty. Geraldine Quimosing-Tiu Riano Reviewer, Syllabus

case, if filed in a multiple-sala court, shall be raffled only after notice to and in the presence of the adverse party or the person to be enjoined. In any event, such notice shall be preceded, or contemporaneously accompanied, by service of summons, together with a copy of the complaint or initiatory pleading and the applicant’s affidavit and bond, upon the adverse party in the Philippines. However, where the summons could not be served personally or by substituted service despite diligent eforts, or the adverse party is a resident of the Philippines temporarily absent therefrom or is a nonresident thereof, the requirement of prior or contemporaneous service of summons shall not apply. (d) The application for a temporary restraining order shall thereafter be acted upon only after all parties are heard in a summary hearing which shall be conducted within twenty-four (24) hours after the sherif’s return of service and/or the records are received by the branch selected by raffle and to which the records shall be transmitted immediately. BACOLOD CITY WATER DISTRICT vs. LABAYEN, DEC. 10, 2004 – The main action for injunction is distinct from the provisional or ancillary remedy of preliminary injunction which cannot exist except only as part or an incident of an independent action or proceeding. As a matter of course, in an action for injunction, the auxiliary remedy of preliminary injunction, whether prohibitory or mandatory, may issue. Under the law, the main action for injunction seeks a judgment embodying a final injunction which is distinct from, and should not be confused with, the provisional remedy of preliminary injunction, the sole object of which is to preserve the status quo until the merits can be heard. A preliminary injunction is granted at any stage of an action or proceeding prior to the judgment or final order. It persists until it is dissolved or until the termination of the action without the court issuing a final injunction. A restraining order, on the other hand, is issued to preserve the status quo until the hearing of the application for preliminary injunction which cannot be issued ex parte. Under Rule 58 of the Rules of Court, a judge may issue a temporary restraining order with a limited life of twenty (20) days from date of issue. If before the expiration of the twenty (20)-day period the application for preliminary injunction is denied, the temporary restraining order would be deemed automatically vacated. If no action is taken by the judge on the application for preliminary injunction within the said twenty (20) days, the temporary restraining order would automatically expire on the 20th day by Gene Geocaniga, Cherry Lynn Trinidad TAU MU Page 28 of 42

Sources: Herrera Vol. III 2006,

the sheer force of law, no judicial declaration to that effect being necessary. UNIVERSAL MOTORS CORP. vs. ROJAS, MAY 26, 2005 – While Section 4(b) of Rule 58 gives the presiding judge the discretion to require a bond before granting a temporary restraining order, the Rules did not intend to give the judge the license to exercise such discretion arbitrarily to the prejudice of the defendant. Certainly, each member of the Bench is not a depository of arbitrary power, but a judge under the sanction of law. The bond under Rule 58 is intended to pay all the damages which the party or person against whom the temporary restraining order or injunction is issued may sustain by reason thereof should the court finally decide that the applicant was not entitled thereto. Hence, it follows that unless it appears that the enjoined party will not suffer any damage, the presiding judge must require the applicant to post a bond, otherwise the courts could become instruments of oppression and harassment. IN RE ADMIN COMPLAINT vs. ABESAMIS, FEB. 13, 2002 – BORJA vs. SALCEDO, SEPT. 26, 2003 – The holding of a summary hearing prior to the issuance of a temporary restraining order is mandatory, in view of the requirement that the application for a temporary restraining order shall be acted upon only after all parties are heard in a summary hearing after the records are transmitted to the branch selected by raffle. In other words, a summary hearing may not be dispensed with. A TRO can be issued ex parte if the matter is of such extreme urgency that grave injustice and irreparable injury will arise unless it is issued immediately. Under such circumstance, the executive judge shall issue the TRO effective only for seventy-two (72) hours from its issuance. The executive judge is then required to summon the parties to a conference, during which the case should be raffled in their presence. Before the expiry of the seventy-two hours, the presiding judge to whom the case was raffled shall conduct a summary hearing to determine whether the TRO can be extended for another period until a hearing on the pending application for preliminary injunction can be held. (Emphasis supplied) The reason for this is that Administrative Circular No. 20-95 aims to restrict the ex parte issuance of a TRO to cases of extreme urgency in order to avoid grave injustice and irreparable injury. PESAYCO vs. LAYAGUE, DEC. 22, 2004 – There is dispute that PNB was not entitled to a notice of raffle at the time the initial complaint of the spouses Limso was filed since the same did not contain a prayer for a TRO. However, when the complaint was amended to include such prayer, a notice of raffle should have been sent to PNB. The OCA, agreeing with Pesayco, submits that Judge Layague’s failure to send notice of raffle constitutes a violation of Section 4(c), Rule 58 of the 1997 Rules of Civil Procedure.

PROVISIONAL REMEDIES 2010 San Beda Memory Aid, Atty. Geraldine Quimosing-Tiu Riano Reviewer, Syllabus

The OCA notes that to allow otherwise would lead to easy circumvention of the rules by filing first a complaint without any prayer for a TRO, and amending such complaint only after the case had been raffled off to include a prayer for the issuance of a TRO, thus effectively evading the requirement of notice to the adverse party, as well as depriving such party the opportunity to witness the raffle of the case. These concerns are quite valid, yet must be qualified by the following observations. There is no rule of procedure that authorizes the re-raffling of a case by reason of an amendment of a complaint to include a prayer for preliminary injunction or a TRO. Neither has there been jurisprudence holding that such re-raffling should be done. It would thus be absurd to require the sending out of notices for a non-existent raffle. On this point, Judge Layague could not be taken to task for not applying Section 4(c) of Rule 58 simply because there is no indubitable or settled guidepost that the procedure should be observed in the situation in point. The concerns of the OCA are understandable, and it may well be observed that the spouses Limso have come across a loophole to Rule 58. Yet we are mindful that the issue we are resolving is whether Judge Layague betrayed gross ignorance of the law in not applying Section 4(c), Rule 58. Considering that the notice/raffle requirement in relation to a complaint amended to include a prayer for TRO is a gray area which has yet to be clarified by the Court, we could not blame Judge Layague for retaining his assignment absent any express command in law or jurisprudence for him to abdicate it. Besides, such action is hardly indicative of any bad faith, dishonesty, hatred or some other like motive which characterizes the offense of gross ignorance of the law. ASSOCIATION vs. LERMA, FEB 18, 2005 – Pertinent paragraphs of Supreme Court Administrative Circular No. 20-95 are quoted hereunder: 1. Where an application for temporary restraining order (TRO) or writ of preliminary injunction is included in a complaint or any initiatory pleading filed with the trial court, such complaint or initiatory pleading shall be raffled only after notice to the adverse party and in the presence of such party or counsel. 2. The application for a TRO shall be acted upon only after all parties are heard in a summary hearing conducted within twentyfour (24) hours after the records are transmitted to the branch selected by raffle. The records shall be transmitted immediately after raffle. xxx (Emphasis and underscoring supplied) This circular is now incorporated in the present Rules of Court as Rule 58, Section 4 as follows: SEC. 4. Verified application and bond for preliminary injunction or restraining order. - A preliminary injunction or temporary restraining order may be granted only when: xxx Gene Geocaniga, Cherry Lynn Trinidad TAU MU Page 29 of 42

Sources: Herrera Vol. III 2006,

(c) When an application for a writ of preliminary injunction or a temporary restraining order is included in a complaint or any initiatory pleading, the case, if filed in a multi-sala court, shall be raffled only after notice to and in the presence of the adverse party or the person sought to be enjoined. In any event, such notice shall be preceded, or contemporaneously accompanied, by service of summons, together with a copy of the complaint or initiatory pleading and the applicant’s affidavit and bond, upon the adverse party in the Philippines. xxx (d) The application for a temporary restraining order shall thereafter be acted upon only after all parties are heard in a summary hearing which shall be conducted within twenty four (24) hours after the sheriff’s return of service and/or records are received by the branch selected by raffle and to which the records shall be transmitted immediately. (Underscoring supplied) Section 5. Preliminary injunction not granted without notice; exception. – No preliminary injunction shall be granted without hearing and prior notice to the party or person sought to be enjoined. If it shall appear from facts shown by affidavits or by the verified application that great or irreparable injury would result to the applicant before the matter can be heard on notice, the court to which the application for preliminary injunction was made, may issue ex parte a temporary restraining order to be efective only for a period of twenty (20) days from service on the party or person sought to be enjoined, except as herein provided. Within the said twenty-day period, the court must order said party or person to show cause, at a specified time and place, why the injunction should not be granted, determine within the same period whether or not the preliminary injunction shall be granted, and accordingly issue the corresponding order. However, and subject to the provisions of the preceding sections, if the matter is of extreme urgency and the applicant will sufer grave injustice and irreparable injury, the executive judge of a multiple-sala court or the presiding judge of a single-sala court may issue ex parte a temporary restraining order efective for only seventy-two (72) hours from issuance but he shall immediately comply with the provisions of the next preceding section as to service of summons and the documents to be served therewith. Thereafter, within the aforesaid seventytwo (72) hours, the judge before whom the case is pending shall conduct a summary hearing to determine whether the temporary restraining order shall be

PROVISIONAL REMEDIES 2010 San Beda Memory Aid, Atty. Geraldine Quimosing-Tiu Riano Reviewer, Syllabus

extended until the application for preliminary injunction can be heard. In no case shall the total period of efectivity of the temporary restraining order exceed twenty (20) days, including the original seventy-two hours provided herein. In the event that the application for preliminary injunction is denied or not resolved within the said period, the temporary restraining order is deemed automatically vacated. The efectivity of a temporary restraining order is not extendible without need of any judicial declaration to that efect and no court shall have authority to extend or renew the same on the same ground for which it was issued. However, if issued by the Court of Appeals or a member thereof, the temporary restraining order shall be efective for sixty (60) days from service on the party or person sought to be enjoined. A restraining order issued by the Supreme Court or a member thereof shall be efective until further orders. There must be prior notice to the person sought to be enjoined and a hearing before preliminary injunction may be granted. A. IF great or irreparable injury would result to the applicant before the matter can be heard on notice:  The court may issue a temporary restraining order, effective only for 20 days from notice on the party sought to be enjoined. B. IF the matter is of extreme urgency and the applicant will sufer grave injustice and irreparable injury:  The judge may issue ex parte a TRO effective only for 72 hours from issuance.  Its effectivity may be extended after conducting a summary hearing within the 72-hr period until the application for preliminary injunction can be heard. The total period of effectivity of the TRO shall not exceed 20 days, including the 72 hours. Note: If application is denied or not resolved within said period, the TRO is deemed automatically vacated. The effectivity of TRO is not extendible. There is no need of a judicial declaration to that effect.  A TRO issued by the CA or any of its members is effective for 60 days from notice to the party sought to be enjoined.  A TRO issued by the SC or a member thereof is effective until further orders. Injury is considered “IRREPARABLE” if it is of such constant and frequent recurrence that no fair or reasonable redress can be had therefore in court of law or where there is no standard by Gene Geocaniga, Cherry Lynn Trinidad TAU MU Page 30 of 42

Sources: Herrera Vol. III 2006,

which their amount can be measured with reasonable accuracy. (SSC vs. Bayona, G.R. No. L13555, May 30, 1982) Note: The trial court, the CA, the Sandiganbayan or the CTA that issued a writ of preliminary injunction against a lower court, board, officer, or quasi-judicial agency shall decide the main case or petition within six (6) months from the issuance of the writ (As amended by A.M. No. 077-12-SC effective December 27, 2007). EDITHA PALMA GIL vs. LOPEZ, JR., APR. 29, 2003 – The Rules explicitly mandate that the application for injunction should be verified. While litigation is not a game of technicalities, every case must be prosecuted in accordance with the prescribed procedure to insure an orderly administration of justice. FORTUNE LIFE INSURANCE vs. LUCZON, JR., NOV. 30, 2006 –Upon the application for a writ of preliminary injunction, where the matter is of extreme urgency and grave injustice and irreparable injury will arise, the Executive Judge may issue ex parte a TRO effective for 72 hours from issuance. Before the expiry of the 72 hours, the presiding judge to whom the case is raffled shall conduct a summary hearing to determine whether the TRO can be extended until the pending application for injunction can be heard. GOMOS vs. ADIONG, OCT. 22, 2004 – Sections 4(c) and 5, Rule 58 of the 1997 Rules of Civil Procedure is very explicit that the writ of preliminary injunction may issue only after prior notice and hearing upon the adverse party. In issuing the subject writ on the very same day the application was filed and considering that the person against whom the same was to be served was located in Makati, summons could not have been served upon them or a hearing conducted in evident disregard of the due process requirements of the Rules of Court. MERONTOS vs. ZERNA, AUG. 9, 2001 – Administrative Circular No. 20-95 requires that an application for a TRO shall be acted upon, only after all parties are heard in a summary hearing. It clearly provides: SUBJECT: RE: SPECIAL RULES FOR TEMPORARY RESTRAINING ORDERS AND PRELIMINARY INJUNCTIONS. 1. Where an application for temporary restraining order (TRO) or writ of preliminary injunction is included in a complaint or any initiatory pleading filed with the trial court, such complaint or initiatory pleading shall be raffled only after notice to the adverse party and in the presence of such party or counsel. 2. The application for a TRO shall be acted upon only after all parties are heard in a summary hearing conducted within twenty-four (24) hours after the records are transmitted to the branch selected by raffle. The records shall be transmitted immediately after raffle.

PROVISIONAL REMEDIES 2010 San Beda Memory Aid, Atty. Geraldine Quimosing-Tiu Riano Reviewer, Syllabus

3. If the matter is of extreme urgency, such that unless a TRO is issued, grave injustice and irreparable injury will arise, the Executive Judge shall issue the TRO effective only for seventy-two (72) hours from issuance but shall immediately summon the parties for conference and immediately raffle the case in their presence. Thereafter, before the expiry of the seventy-two (72) hours, the Presiding Judge to whom the case is assigned shall conduct a summary hearing to determine whether the TRO can be extended for another period until a hearing [o]n the pending application for preliminary injunction can be conducted. In no case shall the total period x x x exceed twenty (20) days, including the original seventytwo (72) hours, for the TRO issued by the Executive Judge. IN RE ADMIN COMPLAINT vs. ABESAMIS, FEB 13, 2002 Section 6. Grounds for objection to, or for motion of dissolution of, injunction or restraining order. – The application for injunction or restraining order may be denied, upon a showing of its insufficiency. The injunction or restraining order may also be denied, or, if granted, may be dissolved, on other grounds upon affidavits of the party or person enjoined, which may be opposed by the applicant also by affidavits. It may further be denied, or, if granted, may be dissolved, if it appears after hearing that although the applicant is entitled to the injunction or restraining order, the issuance or continuance thereof, as the case may be, would cause irreparable damage to the party or person enjoined while the applicant can be fully compensated for such damages as he may sufer, and the former files a bond in an amount fixed by the court conditioned that he will pay all damages which the applicant may sufer by the denial or the dissolution of the injunction or restraining order. If it appears that the extent of the preliminary injunction or restraining order granted is too great, it may be modified. Grounds for Objection to or for Motion of Dissolution 1. Insufficiency; 2. On other grounds upon affidavits of the party or person enjoined, which may be opposed by the applicant also by affidavits; and 3. If injunction would cause irreparable damage to the person enjoined while the applicant can be fully compensated for such damages as he may suffer. PROVIDED, the defendant files a BOND to pay all the damages which the applicant may suffer. Gene Geocaniga, Cherry Lynn Trinidad TAU MU Page 31 of 42

Sources: Herrera Vol. III 2006,

SPOUSES YAP vs. INT’L EXCHANGE BANK, MAR. 28, 2008 – A preliminary injunction may be dissolved if it appears after hearing that although the applicant is entitled to the injunction or restraining order, the issuance or continuance thereof, as the case may be, would cause irreparable damage to the party or person enjoined while the applicant can be fully compensated for such damages as he may suffer, and the former files a bond in an amount fixed by the court on condition that he will pay all damages which the applicant may suffer by the denial or the dissolution of the injunction or restraining order. Two conditions must concur: first, the court in the exercise of its discretion, finds that the continuance of the injunction would cause great damage to the defendant, while the plaintiff can be fully compensated for such damages as he may suffer; second, the defendant files a counter-bond. Section 7. Service of copies of bonds; effect of disapproval of same. – The party filing a bond in accordance with the provisions of this Rule shall forthwith serve a copy of such bond on the other party, who may except to the sufficiency of the bond, or of the surety or sureties thereon. If the applicant’s bond is found to be insufficient in amount, or if the surety or sureties thereon fail to justify, and a bond sufficient in amount with sufficient sureties approved after justification is not filed forthwith, the injunction shall be dissolved. If the bond of the adverse party is found to be insufficient in amount, or the surety or sureties thereon fail to justify a bond sufficient in amount with sufficient sureties approved after justification is not filed forthwith, the injunction shall be granted or restored, as the case may be. Section 8. Judgment to include damages against party and sureties. – At the trial, the amount of damages to be awarded to either party, upon the bond of the adverse party, shall be claimed, ascertained, and awarded under the same procedure prescribed in section 20 of Rule 57. The procedure for claiming damages on the bond is the same as that in preliminary attachment. Recovery of damages for irregular issuance of injunction, as where the main case is dismissed and the injunction is dissolved, is limited to the amount of the bond. NATALIA REALTY vs. CA, FEB. 5, 2003 PHILEX GOLD vs. PHILEX BULAWAN, AUG. 25, 2005

PROVISIONAL REMEDIES 2010 San Beda Memory Aid, Atty. Geraldine Quimosing-Tiu Riano Reviewer, Syllabus

Sources: Herrera Vol. III 2006,

Section 9. When final injunction granted. – If after the trial of the action it appears that the applicant is entitled to have the act or acts complained of permanently enjoined, the court shall grant a final injunction perpetually restraining the party or person enjoined from the commission or continuance of the act or acts or confirming the preliminary mandatory injunction. If after the trial of the action it appears that the applicant is entitled to have the act or acts complained of permanently enjoined. Preliminary Injunction Section 1, Rule 58 Granted at any stage of an action prior to the judgment or final order therein.

Final Injunction Section 9, Rule 58 One issued in the judgment in the case permanently restraining the defendant or making the preliminary injunction permanent.

ELIDAD C. KHO vs. CA, MAR. 19, 2002 – The issuance of a final injunction renders any question on the preliminary injunctive order moot and academic despite the fact that the decision granting a final injunction is pending appeal. Conversely, a decision denying the applicantplaintiff’s right to a final injunction, although appealed, renders moot and academic any objection to the prior dissolution of a writ of preliminary injunction. RULE 59 RECEIVERSHIP Section 1. Appointment of receiver. – Upon a verified application, one or more receivers of the property subject of the action or proceeding may be appointed by the court where the action is pending, or by the Court of Appeals or by the Supreme Court, or a member thereof, in the following cases: (a) When it appears from the verified application, and such other proof as the court may require, that the party applying for the appointment of a receiver has an interest in the property or fund which is the subject of the action or proceeding, and that such property or fund is in danger of being lost, removed, or materially injured unless a receiver be appointed to administer and preserve it; (b) When it appears in an action by the mortgagee for the foreclosure of a mortgage that the property is in danger of being wasted or dissipated or materially injured, and that its value is probably insufficient to discharge the mortgage debt, or that the parties have so stipulated in the contract of mortgage; Gene Geocaniga, Cherry Lynn Trinidad TAU MU Page 32 of 42

(c) After judgment, to preserve the property during the pendency of an appeal, or to dispose of it according to the judgment, or to aid execution when the execution has been returned unsatisfied or the judgment obligor refuses to apply his property in satisfaction of the judgment, or otherwise to carry the judgment into efect; (d) Whenever in other cases it appears that the appointment of a receiver is the most convenient and feasible means of preserving, administering, or disposing of the property in litigation. During the pendency of an appeal, the appellate court may allow an application for the appointment of a receiver to be filed in and decided by the court of origin and the receiver appointed to be subject to the control of said court. Upon verified application, one or more receivers of the property which is the subject of the action may be appointed by the court where the action is pending in the following cases: (IFAC) 1. Applicant has an Interest in the property or fund subject of the proceeding and such property is in danger of being lost, removed, or materially injured unless a receiver is appointed; 2. In Foreclosure of mortgage, when the property is in danger of being dissipated or materially injured, and that it has been agreed upon by the parties; 3. After judgment, to preserve the property during the pendency of an Appeal or to dispose of it according to the judgment or to aid execution; 4. When appointment of receiver is the most Convenient and feasible means of preserving, administering or disposing of the property in litigation. Note: The property must be under litigation. Requisites for the Appointment of a Receiver A receiver of real or personal property, which is the subject of the action, may be appointed by the court when it appears from the pleadings or such other proof as the judge may require, that the party applying for such appointment has 1) an actual interest in it; and 2) that (a) such property is in danger of being lost, removed or materially inured; or (b) whenever it appears to be the most convenient and feasible means of preserving or administering the property in litigation (Commodities Storage vs. CA, June 19, 1997). Guiding principle in the appointment of a receiver

PROVISIONAL REMEDIES 2010 San Beda Memory Aid, Atty. Geraldine Quimosing-Tiu Riano Reviewer, Syllabus

The guiding principle is the prevention of imminent danger to the property. If an action by its nature, does not require such protection or preservation, said remedy cannot be applied for and granted (Commodities Storage vs. CA, supra.). Purpose: For the preservation of the property involved in the suit and to protect the rights of all parties under the direction of the court. A receiver is a person appointed by the court in behalf of all the parties to an action for the purpose of preserving the property involved in the suit and to protect the rights of all the parties under the direction of the court (Millari vs. CA, G.R. No. L-26467, July 15, 1981). A receiver is not a representative party under Rule 3 but a real party in interest, BUT he cannot file a case without the consent of the receivership court. 



Receivership, like injunction, may be the principal action itself or just an ancillary remedy. Such appointment of the RTC during the perfection of an appeal is covered by its residual jurisdiction under Sec. 9 of Rule 41, since this does not involve any matter litigated by the appeal.

Neither party to a litigation should be appointed as receiver without the consent of the other because a receiver should be a person indifferent to the parties and should be impartial and disinterested ((Commodities Storage vs. CA, supra.). Note: This provisional remedy may be resorted to during the pendency of an appeal or even after the judgment has become final and executor. Section 2. Bond on appointment of receiver. – Before issuing the order appointing a receiver the court shall require the applicant to file a bond executed to the party against whom the application is presented, in an amount to be fixed by the court, to the efect that the applicant will pay such party all damages he may sustain by reason of the appointment of such receiver in case the applicant shall have procured such appointment without sufficient cause; and the court may, in its discretion, at any time after the appointment, require an additional bond as further security for such damages. Section 3. Denial of application or discharge of receiver. – The application may be denied, or the receiver discharged, when the adverse party files a bond executed to the applicant, in an amount to be fixed by the court, to the efect that such party will pay the Gene Geocaniga, Cherry Lynn Trinidad TAU MU Page 33 of 42

Sources: Herrera Vol. III 2006,

applicant all damages he may sufer by reason of the acts, omissions, or other matters specified in the application as ground for such appointment. The receiver may also be discharged if it is shown that his appointment was obtained without sufficient cause. Receivership may be denied or lifted: 1. If the appointment sought or granted is without sufficient cause (Sec. 3); 2. Adverse party files a sufficient bond to answer for damages (Sec. 3); 3. Bond posted by the applicant for grant of receivership is insufficient (Sec. 5); or 4. Bond of the receiver is insufficient (Sec. 5). Q: Can receivership be allowed if there’s a notice of lis pendens? A: VIVARES vs. REYES, February 13, 2008 – the appointment of a receiver is not proper where the rights of the parties, one of whom is in possession of the property, are still to be determined by the trial court. Section 4. Oath and bond of receiver. – Before entering upon his duties, the receiver shall be sworn to perform them faithfully, and shall file a bond, executed to such person and in such sum as the court may direct, to the efect that he will faithfully discharge his duties in the action or proceeding and obey the orders of the court. CITIBANK NA vs. CA, March 17, 1999 – the receiver must be required to take an oath pursuant to this section before being allowed to assume receivership. Section 5. Service of copies of bonds; effect of disapproval of same. – The person filing a bond in accordance with the provisions of this Rule shall forthwith serve a copy thereof on each interested party, who may except to its sufficiency or of the surety or sureties thereon. If either the applicant’s or the receiver’s bond is found to be insufficient in amount, or if the surety or sureties thereon fail to justify, and a bond sufficient in amount with sufficient sureties approved after justification is not filed forthwith, the application shall be denied or the receiver discharged, as the case may be. If the bond of the adverse party is found to be insufficient in amount or the surety or sureties thereon fail to justify, and a bond sufficient in amount with sufficient sureties approved after justification is not filed forthwith, the receiver shall be appointed or re-appointed, as the case may be. Section 6. General powers of receiver. – Subject to the control of the court in which the action or proceeding is

PROVISIONAL REMEDIES 2010 San Beda Memory Aid, Atty. Geraldine Quimosing-Tiu Riano Reviewer, Syllabus

pending, a receiver shall have the power to bring and defend, in such capacity, actions in his own name; to take and keep possession of the property in controversy; to receive rents; to collect debts due to himself as receiver or to the fund, property, estate, person, or corporation of which he is the receiver; to compound for and compromise the same; to make transfers; to pay outstanding debts; to divide the money and other property that shall remain among the persons legally entitled to receive the same; and generally to do such acts respecting the property as the court may authorize. However, funds in the hands of a receiver may be invested only by order of the court upon the written consent of all the parties to the action. No action may be filed by or against a receiver without leave of the court which appointed him. Powers of the Receiver Includes: (BTRC 2 MPD2I) 1. Bring and defend, in such capacity, actions in his own name; 2. Take and keep possession of the property in controversy; 3. Receive rents; 4. Collect debts due to himself as receiver or to the fund, property, estate, person, or corporation of which he is the receiver; 5. Compound for and compromise the same; 6. Make transfers; 7. Pay outstanding debts; 8. Divide the money and other property that shall remain among the persons legally entitled to receive the same; 9. Generally to Do such acts respecting the property as the court may authorize; and 10. Invest funds in his hands, only by order of the court upon the written consent of all the parties. 

No action may be brought by or against a receiver without leave of the court which appointed him.

Section 7. Liability for refusal or neglect to deliver property to receiver. – A person who refuses or neglects, upon reasonable demand, to deliver to the receiver all the property, money, books, deeds, notes, bills, documents and papers within his power or control, subject of or involved in the action or proceeding, or in case of disagreement, as determined and ordered by the court, may be punished for contempt and shall be liable to the receiver for the money or the value of the property and other things so refused or neglected to be surrendered, together with all damages that may have been sustained by the party or parties entitled thereto as a consequence of such refusal or neglect. Gene Geocaniga, Cherry Lynn Trinidad TAU MU Page 34 of 42

Sources: Herrera Vol. III 2006,

A person who refuses or neglects to deliver a property, within his control and which is the subject of the action, to the receiver may be punished for CONTEMPT and liable to the receiver for the money or the value of the property plus DAMAGES. The receiver shall also file a bond before entering upon his duties separate from the bond filed by the applicant. The bond shall be liable if the damages sustained were due to the receiver’s malfeasance. Section 8. Termination of receivership; compensation of receiver. – Whenever the court, motu proprio or on motion of either party, shall determine that the necessity for a receiver no longer exists, it shall, after due notice to all interested parties and hearing, settle the accounts of the receiver, direct the delivery of the funds and other property in his possession to the person adjudged to be entitled to receive them, and order the discharge of the receiver from further duty as such. The court shall allow the receiver such reasonable compensation as the circumstances of the case warrant, to be taxed as costs against the defeated party, or apportioned, as justice requires. TRADERS ROYAL BANK vs. IAC, June 17, 1997 when the services of a receiver who has been properly appointed terminates, his compensation is to be charged against the defeated party, or the prevailing litigant may be made to share the expense, as justice requires. Consequently, the trial court's order approving receiver’s compensation to be charged solely against the funds under its receivership is without legal justification. Section 9. Judgment to include recovery against sureties. – The amount, if any, to be awarded to any party upon any bond filed in accordance with the provisions of this Rule, shall be claimed, ascertained, and granted under the same procedure prescribed in section 20 of Rule 57. Note: Where the damages sustained were not by reason of the appointment of the receiver but to his own malfeasance, the recovery shall be against the receiver’s bond and may be recovered in a separate action (De la Rosa & Co. vs. De Borja, G.R. No. L-28611, January 30, 1929) RULE 60 REPLEVIN Replevin Defined SUPERLINES TRANSPORTATION CO. vs. PNCC, March 28, 2007 - The term replevin is popularly understood as “the return to or recovery by a

PROVISIONAL REMEDIES 2010 San Beda Memory Aid, Atty. Geraldine Quimosing-Tiu Riano Reviewer, Syllabus

person of goods or chattels claimed to be wrongfully taken or detained upon the person’s giving security to try the matter in court and return the goods if defeated in the action;” “the writ by or the common-law action in which goods and chattels are replevied,” i.e., taken or gotten back by a writ for replevin;” and to replevy, means to recover possession by an action of replevin; to take possession of goods or chattels under a replevin order. Bouvier’s Law Dictionary defines replevin as “a form of action which lies to regain the possession of personal chattels which have been taken from the plaintif unlawfully x x x, (or as) the writ by virtue of which the sheriff proceeds at once to take possession of the property therein described and transfer it to the plaintiff upon his giving pledges which are satisfactory to the sheriff to prove his title, or return the chattels taken if he fail so to do; the same authority states that the term, “to replevy” means “ to re-deliver goods which have been distrained to the original possessor of them, on his giving pledges in an action of replevin.” The term therefore may refer either to the action itself, for the recovery of personality, or the provisional remedy traditionally associated with it, by which possession of the property may be obtain[ed] by the plaintif and retained during the pendency of the action. (Emphasis and underscoring supplied; citations omitted)

In a complaint for replevin, the claimant must convincingly show that he is either the owner or clearly entitled to the possession of the object sought to be recovered, and that the defendant, who is in actual or legal possession thereof, wrongfully detains the same. Nature of the Proceedings SMART COMMUNICATIONS INC. vs. ASTORGA, January 29, 2008 - Replevin is designed to permit one having right to possession to recover property in specie from one who has wrongfully taken or detained the property. The term may refer either to the action itself, for the recovery of personalty, or to the provisional remedy traditionally associated with it, by which possession of the property may be obtained by the plaintiff and retained during the pendency of the action. Replevin is a possessory action, the gist of which is the right of possession in the plaintiff. PCI LEASING INC. vs. DAI, September 21, 2007 - Replevin is so usually described as a mixed action, being partly in rem and partly in personam – in rem insofar as the recovery of specific property is concerned, and in personam as regards to damages involved. As an “action in rem,” the gist of the replevin action is the right of the plaintiff to obtain possession of specific personal property by reason of his being the owner or of his having a special interest therein. Petitioner’s complaint for replevin was doubtless a mixed action – in rem with respect to its prayer for the recovery of the vessel, and in personam with respect to its claim for Gene Geocaniga, Cherry Lynn Trinidad TAU MU Page 35 of 42

Sources: Herrera Vol. III 2006,

damages. And it was, with respect to its alternative prayer, clearly one in personam. Following paragraph (b) of Section 49, Rule 39 of the 1964 Rules of Court, now 47 of Rule 39 of the present Rules, petitioner’s second complaint is unquestionably barred by res judicata. RIVERA vs. VARGAS, June 5, 2009 - replevin is both a form of principal remedy and of provisional relief. It may refer either to the action itself, i.e., to regain the possession of personal chattels being wrongfully detained from the plaintiff by another, or to the provisional remedy that would allow the plaintiff to retain the thing during the pendency of the action and to hold it pendente lite. The action is primarily possessory in nature and generally determines nothing more than the right of possession. Section 1. Application. – A party praying for the recovery of possession of personal property may, at the commencement of the action or at any time before answer, apply for an order for the delivery of such property to him, in the manner hereinafter provided. A writ of replevin must be applied for at the commencement of the action or at any time before the defendant files his answer, for which reason there can be no replevin before the appellate courts. Writ of Replevin May be sought only when the principal action is recovery of personal property. Can be sought only when defendant is in actual possession of the property. Cannot be availed of when property is in custodia legis. Available before defendant answers. Bond is double the value of the property.

Writ of Preliminary Attachment Available even if recovery of property is only incidental to the relief sought. May be resorted to even if the property is in possession of a third person. Can be availed of even if property is in custodia legis. Available from commencement but before entry of judgment. Bond is fixed by the court.

Note: There can be no replevin and preliminary attachment in the same case because the purposes are different. In Rule 57, it is for security. In Rule 60, it is for recovery of possession. Jurisdiction ASIAN TERMINALS, INC. vs. RICAFORT, October 27, 2006 - Under the Customs and Tarriff Code, the Collector of Customs sitting in seizure and forfeiture proceedings had the exclusive jurisdiction to hear and determine all questions relating on the seizure and forfeiture of dutiable goods. The RTC had no review powers over such proceedings; it is the Court of Tax Appeals under RA No. 1125.

PROVISIONAL REMEDIES 2010 San Beda Memory Aid, Atty. Geraldine Quimosing-Tiu Riano Reviewer, Syllabus

Section 2. Affidavit and bond. – The applicant must show by his own affidavit or that of some other person who personally knows the facts: (a) That the applicant is the owner of the property claimed, particularly describing it, or is entitled to the possession thereof; (b) That the property is wrongfully detained by the adverse party, alleging the cause of detention thereof according to the best of his knowledge, information, and belief; (c) That the property has not been distrained or taken for a tax assessment or a fine pursuant to law, or seized under a writ of execution or preliminary attachment, or otherwise placed under custodia legis, or if so seized, that it is exempt from such seizure or custody; and (d) The actual market value of the property. The applicant must also give a bond, executed to the adverse party in double the value of the property as stated in the affidavit aforementioned, for the return of the property to the adverse party if such return be adjudged, and for the payment to the adverse party of such sum as he may recover from the applicant in the action. Procedure for the application for Replevin: 1. File an application at the commencement of the action or at anytime before defendant answers. 2. Application must contain an affidavit. The affidavit MUST SHOW that: b. Applicant is the owner of the property claimed, particularly describing it, or is entitled to the possession thereof; c. Property is wrongfully detained by the adverse party; d. Property has not been distrained or taken for tax assessment or a fine pursuant to law, or seized under a writ of execution or under custodia legis; and e. Actual market value of the property. 3. Applicant must give a bond, executed to the adverse party and double the value of the property. Cases: CITIBANK NA vs. CA, March 17, 1999 - There is substantial compliance with the rule requiring that an affidavit of merit to support the complaint for replevin if the complaint itself contains a statement of every fact required to be stated in the affidavit of merit and the complaint is verified like an affidavit. The affidavit or complaint must, however, state that the subject properties were not taken by virtue of a tax assessment or fine imposed pursuant to law or seized under execution or Gene Geocaniga, Cherry Lynn Trinidad TAU MU Page 36 of 42

Sources: Herrera Vol. III 2006,

attachment or, if they were so seized, that they are exempt from such seizure. Pertinent rules require that the affidavit of merit should state the actual value of the property subject of a replevin suit and not just its probable value. Actual value (or actual market value) means “the price which an article would command in the ordinary course of business, that is to say, when offered for sale by one willing to sell, but not under compulsion to sell, and purchased by another who is willing to buy, but under no obligation to purchase it”. Petitioner’s assertion is belied by the fact that upon taking possession of the aforesaid properties, it insured the same for P610,593.74 and P450,000.00, separately. It bears stressing that the actual value of the properties subject of a replevin is required to be stated in the affidavit because such actual value will be the basis of the replevin bond required to be posted by the plaintiff. Therefore, when the petitioner failed to declare the actual value of the machineries and equipment subject of the replevin suit, there was non-compliance with Section 2, Rule 60 of the Revised Rules of Court. SERVICEWIDE SPECIALISTS, INC. vs. CA, November 19, 1999 Rule 60 of the Revised Rules of Court requires that an applicant for replevin must show that he “is the owner of the property claimed, particularly describing it, or is entitled to the possession thereof.” Where the right of the plaintiff to the possession of the specified property is so conceded or evident, the action need only be maintained against him who so possesses the property. In default of the mortgagor, the mortgagee is thereby constituted as attorney-in-fact of the mortgagor, enabling such mortgagee to act for and in behalf of the owner. That the defendant is not privy to the chattel mortgage should be inconsequential. By the fact that the object of replevin is traced to his possession, one properly can be a defendant in an action for replevin. It is here assumed that the plaintiff’s right to possess the thing is not or cannot be disputed. TWIN ACE HOLDINGS CORP. vs. RUFINA & CO., June 8, 2006 – Wrongful detention by the defendant of the properties sought in an action for replevin must be satisfactorily established. If only a mechanistic averment thereof is offered, the writ should not be issued. In this case, Twin Ace has not shown that it is entitled to the possession of the bottles in question and consequently there is thus no basis for the demand by it of due compensation. PAAT vs. CA, January 10, 1997 - “To detain” is defined as to mean “to hold or keep in custody,” and it has been held that there is tortuous taking whenever there is an unlawful meddling with the property, or an exercise or claim of dominion over it, without any pretense of authority or right; this, without manual seizing of the property is sufficient.

PROVISIONAL REMEDIES 2010 San Beda Memory Aid, Atty. Geraldine Quimosing-Tiu Riano Reviewer, Syllabus

The suit for replevin is never intended as a procedural tool to question the orders of confiscation and forfeiture issued by the DENR in pursuance to the authority given under P.D.705, as amended. Courts may not review the decisions of the Secretary except through a special civil action for certiorari or prohibition. FACTORAN vs. CA, December 13, 1999 - A writ of replevin does not just issue as a matter of course upon the applicant’s filing of a bond and affidavit. The mere filing of an affidavit, sans allegations therein that satisfy the requirements of Sec. 2, Rule 60, cannot justify the issuance of a writ of replevin. As the petitioner Secretary’s administrative authority to confiscate is clearly provided by law, the taking of the subject properties is not wrongful and does not warrant the issuance of a writ of replevin prayed for by private respondents. Issuance of the confiscation order by petitioner Secretary was a valid exercise of his power under Sec. 68-A of P.D. No. 705. By virtue of said order, the narra lumber and six-wheeler truck of private respondents were held in custodia legis and hence, beyond the reach of replevin. Property lawfully taken by virtue of legal process is deemed to be in custodia legis. When a thing is in official custody of a judicial or executive officer in pursuance of his execution of a legal writ, replevin will not lie to recover it. Otherwise, there would be interference with the possession before the function of law had been performed as to the process under which the property was taken. SUPERLINES vs. PNCC, supra., - It is true that property held as evidence in a criminal case cannot be replevied. But the rule applies only where the property is lawfully held, that is, seized in accordance with the rule against warrantless searches and seizures or its accepted exceptions. Property subject of litigation is not by that fact alone in custodia legis. As the Court said in Tamisin v. Odejar, “A thing is in custodia legis when it is shown that it has been and is subjected to the official custody of a judicial executive officer in pursuance of his execution of a legal writ.” Only when property is lawfully taken by virtue of legal process is it considered in the custody of the law, and not otherwise. Section 3. Order. – Upon the filing of such affidavit and approval of the bond, the court shall issue an order and the corresponding writ of replevin describing the personal property alleged to be wrongfully detained and requiring the sherif forthwith to take such property into his custody. SERG’S PRODUCTS, INC. vs. PCI LEASING, August 22, 2000 - After agreeing to a contract stipulating that a real or immovable property be considered as personal or movable, a party is estopped from Gene Geocaniga, Cherry Lynn Trinidad TAU MU Page 37 of 42

Sources: Herrera Vol. III 2006,

subsequently claiming otherwise. Hence, such property is a proper subject of a writ of replevin obtained by the other contracting party. Section 4. Duty of the sheriff. – Upon receiving such order, the sherif must serve a copy thereof on the adverse party, together with a copy of the application, affidavit and bond, and must forthwith take the property, if it be in the possession of the adverse party, or his agent, and retain it in his custody. If the property or any part thereof be concealed in a building or enclosure, the sherif must demand its delivery, and if it be not delivered, he must cause the building or enclosure to be broken open and take the property into his possession. After the sherif has taken possession of the property as herein provided, he must keep it in a secure place and shall be responsible for its delivery to the party entitled thereto upon receiving his fees and necessary expenses for taking and keeping the same. RIVERA vs. VARGAS, June 5, 2009 - The process regarding the execution of the writ of replevin in Section 4 of Rule 60 is unambiguous: the sheriff, upon receipt of the writ of replevin and prior to the taking of the property, must serve a copy thereof to the adverse party (petitioner, in this case) together with the application, the affidavit of merit, and the replevin bond. The reasons are simple, i.e., to provide proper notice to the adverse party that his property is being seized in accordance with the court’s order upon application by the other party, and ultimately to allow the adverse party to take the proper remedy consequent thereto. Service of the writ upon the adverse party is mandatory in line with the constitutional guaranty on procedural due process and as safeguard against unreasonable searches and seizures. TORRES vs. CABESUELA, September 28, 2001 Respondent's act of implementing the writ in Nueva Ecija when his territorial jurisdiction is confined only to Manila is a clear violation of the law. The proper recourse would have been to seek the assistance of the sheriff of Nueva Ecija rather than deputizing the police officer of said place. GOMEZ vs. CONCEPCION, May 9, 2000 – A sheriff is clearly remiss in the performance of his assigned task in parking a vehicle in his custody in front of his residence instead of having it stored in a secure place. HAO vs. ANDRES, June 18, 2008 - the property seized should not be immediately delivered to the plaintiff, and the sheriff must retain custody of the seized property for at least five days. Hence, the act of Andres (sheriff) in delivering the seized vehicles immediately after seizure to Silver

PROVISIONAL REMEDIES 2010 San Beda Memory Aid, Atty. Geraldine Quimosing-Tiu Riano Reviewer, Syllabus

for whatever purpose, without observing the fiveday requirement finds no legal justification. Section 5. Return of property. – If the adverse party objects to the sufficiency of the applicant’s bond, or of the surety or sureties thereon, he cannot immediately require the return of the property, but if he does not so object, he may, at any time before the delivery of the property to the applicant, require the return thereof, by filing with the court where the action is pending a bond executed to the applicant, in double the value of the property as stated in the applicant’s affidavit for the delivery thereof to the applicant, if such delivery be adjudged, and for the payment of such sum to him as may be recovered against the adverse party, and by serving a copy of such bond on the applicant. CITIBANK NA vs. CA, supra. - the remedies provided under Section 5, Rule 60, are alternative remedies. This course of action is available to the defendant for as long as he does not object to the sufficiency of the plaintiff’s bond. Conformably, a defendant in a replevin suit may demand the return of possession of the property replevined by filing a redelivery bond executed to the plaintiff in double the value of the property as stated in the plaintiff’s affidavit within the period specified in Sections 5 and 6. Alternatively, “the defendant may object to the sufficiency of the plaintiff’s bond, or of the surety or sureties thereon;” but if he does so, “he cannot require the return of the property” by posting a counter-bond pursuant to Sections 5 and 6. BAUTISTA vs. SULA, August 17, 2007 - If a defendant in a replevin action wishes to have the property taken by the sheriff restored to him, he should within five days from such taking, (1) post a counter-bond in double the value of said property, and (2) serve plaintiff with a copy thereof, both requirements — as well as compliance therewith within the five-day period mentioned — being mandatory. The prerogatives of sheriffs do not include the discretion to determine who among the parties is entitled to the possession of the property. Even when placed in a difficult situation, they are not called to exercise their own discretion. Q: If there is no proper service, what remedy is available to petitioner? RIVERA vs. VARGAS, June 5, 2009 - petitioner’s proper remedy should have been to file a motion to quash the writ of replevin or a motion to vacate the order of seizure. Nevertheless, petitioner’s filing of an application for a redelivery bond, while not necessary, did not thereby waive her right to question the improper service. It now becomes imperative for the trial court to restore the parties to their former positions by returning Gene Geocaniga, Cherry Lynn Trinidad TAU MU Page 38 of 42

Sources: Herrera Vol. III 2006,

the seized property to petitioner and by discharging the replevin bond filed by respondent. The trial, with respect to the main action, shall continue. Respondent may, however, file a new application for replevin should he choose to do so. Section 6. Disposition of property by sheriff. – If within five (5) days after the taking of the property by the sherif, the adverse party does not object to the sufficiency of the bond, or of the surety or sureties thereon; or if the adverse party so objects and the court affirms its approval of the applicant’s bond or approves a new bond, or if the adverse party requires the return of the property but his bond is objected to and found insufficient and he does not forthwith file an approved bond, the property shall be delivered to the applicant. If for any reason the property is not delivered to the applicant, the sherif must return it to the adverse party. The sheriff shall retain the property for 5 days. Within such period, the adverse party may object to the sufficiency of the applicant’s bond or surety or he may file a redelivery bond. After 5 days and the adverse party failed to object or his redelivery bond is insufficient, the sheriff shall deliver the property to the applicant. DEFENDANT is ENTITLED to the return of the property under a Writ of Replevin: 1. Seasonably posts a redelivery bond; 2. Plaintiff’s bond is found to be insufficient or defective and is not replaced with proper bond; or 3. Property is not delivered to the plaintiff for any reason. CITIBANK NA vs. CA, supra - In the case under consideration, the private respondent did not opt to cause redelivery of the properties to him by filing a counter-bond precisely because he objected to the sufficiency of the bond posted byx plaintiff. Therefore, he need not file a counter-bond or redelivery bond. When such objection was not given due course in the court below - when, instead of requiring the plaintiff to post a new bond, the court approved the bond claimed by respondent to be insufficient, and ordered the seizure of the properties - recourse to a petition for certiorari before the Court of Appeals assailing such order is proper under the circumstances. BAUTISTA vs. SULA, supra - The purpose of the five-day period in Section 6 is to give defendants in a replevin case a chance to require the return of the property by filing a counter-bond. ADOMA vs. GATCHECO, January 17, 2005 respondent sheriff deliberately failed to place complainant in possession of the vehicle after five days from the implementation of the writ because

PROVISIONAL REMEDIES 2010 San Beda Memory Aid, Atty. Geraldine Quimosing-Tiu Riano Reviewer, Syllabus

the latter failed to give the whole amount he promised. Since the adverse party did not object to the complainant’s bond nor posted a redelivery bond to recover possession of the vehicle taken under the writ of replevin, respondent sheriff is under obligation to deliver the van to complainant. However, it took respondent sheriff 13 days before he released the vehicle to complainant, a clear violation of Section 6, Rule 60. Section 7. Proceedings where property claimed by third person. – If the property taken is claimed by any person other than the party against whom the writ of replevin had been issued or his agent, and such person makes an affidavit of his title thereto, or right to the possession thereof, stating the grounds therefore, and serves such affidavit upon the sherif while the latter has possession of the property and a copy thereof upon the applicant, the sherif shall not be bound to keep the property under replevin or deliver it to the applicant unless the applicant or his agent, on demand of said sherif, shall file a bond approved by the court to indemnify the third-party claimant in a sum not less than the value of the property under replevin as provided in section 2 hereof. In case of disagreement as to such value, the court shall determine the same. No claim for damages for the taking or keeping of the property may be enforced against the bond unless the action therefore is filed within one hundred twenty (120) days from the date of the filing of the bond. The sherif shall not be liable for damages, for the taking or keeping of such property, to any such third-party claimant if such bond shall be filed. Nothing herein contained shall prevent such claimant or any third person from vindicating his claim to the property, or prevent the applicant from claiming damages against a third-party claimant who filed a frivolous or plainly spurious claim, in the same or a separate action. When the writ of replevin is issued in favor of the Republic of the Philippines, or any officer duly representing it, the filing of such bond shall not be required, and in case the sherif is sued for damages as a result of the replevin, he shall be represented by the Solicitor General, and if held liable therefore, the actual damages adjudged by the court shall be paid by the National Treasurer out of the funds to be appropriated for the purpose. Similar as in third-party claims in execution and in attachment. (Principle of Terceria)

Sources: Herrera Vol. III 2006,

Note: In Section 14 of Rule 57, the affidavit is served upon the sheriff while he has possession of the attached property. In Section 7 of Rule 60, the affidavit is served WITHIN THE 5 DAYS THE SHERIFF HAS POSSESSION, in connection with Section 6. Section 8. Return of papers. – The sherif must file the order, with his proceedings indorsed thereon, with the court within ten (10) days after taking the property mentioned therein. Section 9. Judgment. – After trial of the issues, the court shall determine who has the right of possession to and the value of the property and shall render judgment in the alternative for the delivery thereof to the party entitled to the same, or for its value in case delivery cannot be made, and also for such damages as either party may prove, with costs. ALLANDALE SPORTSLINE vs. THE GOOD DEV’T CORP., December 18, 2008 – the effect of the election by respondent of the remedy of extrajudicial foreclosure is the inapplicability of Section 9, Rule 60. Section 10. Judgment to include recovery against sureties. – The amount, if any, to be awarded to any party upon any bond filed in accordance with the provisions of this Rule, shall be claimed, ascertained, and granted under the same procedure as prescribed in section 20 of Rule 57. Plaintiff who obtains possession of the personal property by a writ of replevin DOES NOT ACQUIRE absolute title thereto, nor does the defendant acquire such title by re-bonding the property, as they only hold the property subject to the final judgment in the action. Surety’s liability under the replevin bond should be included in the final judgment to prevent duplicity of suits or proceedings. 

Provisions of Section 20 of Rule 57 are applicable not only to the replevin bond of the plaintiff but also to the redelivery bond posted by the defendant for the lifting of the writ.

Note: The judgment may be in the ALTERNATIVE, i.e., for the delivery of the property to the party entitled to it, or for the value of the property in case the same cannot be delivered plus damages. REPLEVIN BOND is simply intended to indemnify the defendant against loss that he may suffer by being compelled to surrender the possession of the disputed property pending trial of the action. Note: A writ of replevin may be served anywhere in the Philippines.

Gene Geocaniga, Cherry Lynn Trinidad TAU MU Page 39 of 42

PROVISIONAL REMEDIES 2010 San Beda Memory Aid, Atty. Geraldine Quimosing-Tiu Riano Reviewer, Syllabus

RULE 61 SUPPORT PENDENTE LITE Definition Support Pendente Lite is an amount of support provisionally fixed by the court in favor of the person or persons entitled thereto during the pendency of an action for support. Support pendente lite is an amount adjudicated by the trial court during the pendency of an action for support upon application by the plaintiff at the commencement of the proper action or at any time afterwards. It is a remedy recognized by the Revised Rules of Court and classified as a provisional remedy rendered by the court as equity and justice may require (117 SCRA 929, Fundamentals of Support Pendente Lite). Note: Under Section 4 of Rule 39, the judgment in an action for support is immediately executory. Where filed: Family Court.

It is exclusively cognizable by a

Except: In criminal actions, where right to support arises by reason of crime and as long as the civil aspect is tried together with it, the RTC and MTC having jurisdiction may also issue this remedy. Section 1. Application. – At the commencement of the proper action or proceeding, or at any time prior to the judgment or final order, a verified application for support pendente lite may be filed by any party stating the grounds for the claim and the financial conditions of both parties, and accompanied by affidavits, depositions or other authentic documents in support thereof.

Sources: Herrera Vol. III 2006,

the fact of marriage, because the right of a wife to support depends upon her status as such, and where the existence of such status is put in issue by the pleading, it cannot be presumed to exist for the purpose of granting alimony. SAN JUAN vs. VALENZUELA, October 23, 1982 the petitioner's willingness to pay the amount of support pendent lite in the manner indicated in his manifestation, and the approval thereof by the respondent Judge have rendered this petition moot and academic. The amount of support pendente lite is not final in character in the sense that it can be the subject of modification, depending on the changing conditions affecting the ability of the obligor to pay the amount fixed for support. RAMOS vs. CA, June 30, 1972 – Giving of support pendente lite lies within the discretion of the trial court to direct the father to give support pending the appeal. If before the rendition of judgment, the trial court may "provisionally" grant alimony pendente lite, with more reason may an appellate court exercise a similar authority, after a full dress trial and a decision of the trial court on the merits finding that the claim of filiation and support has been adequately proven — in the case at bar, beyond doubt — even if such decision were still pending appeal taken by the party adjudged to be bound to give such support. An appellate court may grant alimony pendente lite even if the trial court refused to grant the same.

Note: Where the right to support is put in issue by the pleading or the fact from which the right is in controversy or has not been established, the court cannot grant support pendente lite (Francisco vs. Zandueta, G.R. No. L-43794, August 9, 1935)

VASCO vs. CA, February 28, 1978 – But if appeal is already perfected the trial court loses jurisdiction to issue execution of judgment for support. It has no jurisdiction because after the perfection of the appeal, “the trial court loses its jurisdiction over the case, EXCEPT to issue orders for the protection and preservation of the rights of the parties which do not involve any matter litigated by the appeal, to approve compromise offered by the parties prior to the transmittal of the record on appeal to the appellate court, and to permit the prosecution of pauper’s appeals.” An order for execution pending appeal does not fall within the said exceptions because it is a proceeding involving the very matter litigated by the appeal. x x x Before the rendition of judgment, the plaintiffs could have availed themselves in the lower court of the provisional remedy of support pendente lite. They did not do so. On the other hand, the general rule is that an appeal stays the execution of the judgment. Parens patriae doctrine is applicable to recipients of support who are non sui juris but not to those who are no longer minors.

COQUIA vs. BALTAZAR, supra. - Even in an action for divorce and alimony, it has been held that the court has no jurisdiction to grant alimony pendente lite where the answer to the complaint alleging marriage and praying for divorce denies

Section 2. Comment. – A copy of the application and all supporting documents shall be served upon the adverse party, who shall have five (5) days to comment thereon unless a

Application At the commencement of the action or at any time before judgment or final order. This provisional remedy is available ONLY in an Action for Support, or where one of the reliefs sought is Support for the Applicant (Coquia vs. Baltazar, G.R. No. L-2942, December 29, 1949).

Gene Geocaniga, Cherry Lynn Trinidad TAU MU Page 40 of 42

PROVISIONAL REMEDIES 2010 San Beda Memory Aid, Atty. Geraldine Quimosing-Tiu Riano Reviewer, Syllabus

diferent period is fixed by the court upon his motion. The comment shall be verified and shall be accompanied by affidavits, depositions or other authentic documents in support thereof. Q: When shall a court issue an order to submit comment? A: Upon adverse party’s motion. Section 3. Hearing. – After the comment is filed, or after the expiration of the period for its filing, the application shall be set for hearing not more than three (3) days thereafter. The facts in issue shall be proved in the same manner as is provided for evidence on motions. Defenses against support pendente lite Adultery as Valid Defense RAMOS vs. CA, supra. - the Court of Appeals erred in not allowing the defendant to present his evidence for the purpose of determining whether it is sufficient prima facie to overcome the application. Adultery on the part of the wife is a valid defense against an action for support. Consequently, as to the child, it is also a defense that it is the fruit of such adulterous relations, for in that case, it would not be the child of the defendant and, hence would not be entitled to support as such. But as this defense should be established, and not merely alleged, it would be unavailing if proof thereof is not permitted. It is not of course necessary to go fully into merits of the case, it being sufficient that the court ascertain the kind of amount of evidence which it may deem sufficient to enable it to justly resolve the application, one way or take other, in view of the merely provisional character of take resolution to be entered. Denial of Paternity A denial of the relationship from which the obligation to give support arises will be considered as valid defense against an action for support. FRANCISCO vs. ZANDUETA, August 9, 1935 –The civil status of sonship being denied and this civil status, from which the right to support is derived, being in issue, it is apparent that no effect can be given to such a claim until an authoritative declaration has been made as to the existence of the cause. Non-existence of Marriage Since the obligation to give support arises from the relationship of spouses, the absence of such relationship would therefore defeat any claim for support. It should be remembered that merely asserting the invalidity of a marriage may not be a defense against a support pendente lite because until marriage is invalidated it will subsists. Death of Recipient Gene Geocaniga, Cherry Lynn Trinidad TAU MU Page 41 of 42

Sources: Herrera Vol. III 2006,

Under the law, the obligation to give support shall cease upon the death of the recipient. Improper Conduct of the Person Seeking Support Two instances of improper conduct which would extinguish the obligation to give support: 1. When the recipient, be he a forced heir or not, has committed some act which gives rise to disinheritance; and 2. When the recipient is a descendant, brother or sister of the obligor and the need for support is caused by his/her bad conduct or by the lack of application to work, so long as this cause subsists. Section 4. Order. – The court shall determine provisionally the pertinent facts, and shall render such orders as justice and equity may require, having due regard to the probable outcome of the case and such other circumstances as may aid in the proper resolution of the question involved. If the application is granted, the court shall fix the amount of money to be provisionally paid or such other forms of support as should be provided, taking into account the necessities of the applicant and the resources or means of the adverse party, and the terms of payment or mode for providing the support. If the application is denied, the principal case shall be tried and decided as early as possible. Note: Includes “other forms of support”, meaning medical attendance, housing, clothing, education, etc. MANGONON vs. CA, June 30, 2006 – a court may temporarily grant support pendente lite prior to the rendition of judgment or final order. Because of its provisional nature, a court does not need to delve fully into the merits of the case before it can settle an application for this relief. All that a court is tasked to do is determine the kind and amount of evidence which may suffice to enable it to justly resolve the application. It is enough that the facts be established by affidavits or other documentary evidence appearing in the record. Section 5. Enforcement of order. – If the adverse party fails to comply with an order granting support pendente lite, the court shall, motu proprio or upon motion, issue an order of execution against him, without prejudice to his liability for contempt. When the person ordered to give support pendente lite refuses or fails to do so, any third person who furnished that support to the applicant may, after due notice and hearing in the same case, obtain a writ of execution to enforce his right of reimbursement against the person ordered to provide such support.

PROVISIONAL REMEDIES 2010 San Beda Memory Aid, Atty. Geraldine Quimosing-Tiu Riano Reviewer, Syllabus

Failure to comply with an order granting support pendente lite may warrant:  the issuance of an ORDER OF EXECUTION against the non-complying party; and  may likewise make him liable for contempt. Note: Support pendente lite is INTERLOCUTORY, thus, the same may be modified at any stage of the proceedings. As it is non-appealable, the remedy therefore is an original action for certiorari to annul the order of denial.

Sources: Herrera Vol. III 2006,

amounts already paid with legal interest from the dates of actual payment, without prejudice to the right of the recipient to obtain reimbursement in a separate action from the person legally obliged to give the support. Should the recipient fail to reimburse said amounts, the person who provided through same may likewise seek reimbursement thereof in a separate action from the person legally obliged to give such support.

MANGONON vs. CA, supra. – The obligation to give support rests principally on those more closely related to the recipient. However, the more remote relatives may be held to shoulder the responsibility should the claimant prove that those who are called upon to provide support do not have the means to do so. Respondent Francisco could not avail himself of the second option provided under Art. 204 of the Family Code – receiving and maintaining in the family dwelling the person who has a right to receive support – in view of the filing of this case, and the allegations hurled at one another by the parties, the relationships among the parties had certainly been affected, and particularly difficult for Rica and Rina must be the fact that those who they had considered and claimed as family denied having any familial relationship with them.

Remedies of party who was erroneously compelled to give support: 1. Apply for an order for such reimbursement by the recipient on motion in the trial court in the same case, unless such restitution is already included in the judgment; or 2. Failing therein, file a separate action for reimbursement against the person legally obliged to give support.

Q: Can a court grant support in arrears? A: MANGONON vs. CA, supra. - Considering, however, that the twin sisters may have already been done with their education by the time of the promulgation of this decision, we deem it proper to award support pendente lite in arrears to be computed from the time they entered college until they had finished their respective studies.

Distinguish Rule 61 from all the rest of Provisional Remedies 1. No bond that will answer for erroneous grant ; 2. The comment of the defendant is required prior to the grant; 3. Application is verified

Section 6. Support in criminal cases. – In criminal actions where the civil liability includes support for the ofspring as a consequence of the crime and the civil aspect thereof has not been waived, reserved or instituted prior to its filing, the accused may be ordered to provide support pendente lite to the child born to the ofended party allegedly because of the crime. The application therefore may be filed successively by the ofended party, her parents, grandparents or guardian and the State in the corresponding criminal case during its pendency, in accordance with the procedure established under this Rule. Art. 345 RPC, in crimes against chastity, “(3) In every case to support the offspring.” Section 7. Restitution. – When the judgment or final order of the court finds that the person who has been providing support pendente lite is not liable therefore, it shall order the recipient thereof to return to the former the Gene Geocaniga, Cherry Lynn Trinidad TAU MU Page 42 of 42

Note: See Matrix on provisional remedies for more detailed information MANGONON vs. CA, supra. – In case it would be resolved that the recipients are not entitled to support pendente lite, they shall return the amounts already paid with legal interest from the dates of actual payment.

Support is a matter of life and death; more urgent for it has something to do with the continued survival.